$B    SfiS    bbS 


REESE   LIBRARY 

OF    THK 

UNIVERSITY  OF  CALIFORNIA. 
Received         MAR  14  1893  '    ,  ^gg    . 


j^ccessions  No.  ^O  ^l  7^     Class  No. 


A.    TRKATISK 


ON  THE 


Power  to  Enact,  Passage,  Validity  and  Enforcement 


OF 


MUNICIPAL  POLICE  ORDINANCES 


WITH 


APPKNDIX    OK    KORIVIS 


REFERENCES  TO  ALL  THE  DECIDED  CASES  ON  THE  SUBJECT 
IN  THE  UNITED  STATES,  ENGLAND  AND  CANADA 


BY 

NORTON  T.  HORR  and  ALTON  A.  BEMIS 

OF     THE     CLEVELAND      BAR  ' 


CINCINNATI 
ROBERT   CLARKE   &   CO 

1SS7 


4 


Entered  according  to  Act  of  Congress,  in  the  year  1887,  by 

ROBERT  CLARKE  &  CO. 

In  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


S'oS^i^ 


PRKFACB. 


The  authors  have  noticed  that  very  many  questions  arise 
in  the  drafting  of  municipal  ordinances  as  to  the  precisa 
extent  to  which  certain  powers  of  police  regulation  may  be 
exercised,  and  upon  which  very  little  authority  can  be 
readily  found.  Except  in  those  cities  and  towns  where  the 
municipal  council  has  the  assistance  of  regularly  employed 
legal  advisers,  the  limits  of  lawful  legislation  are  apt  to  be 
exceeded.  Questions  of  this  nature,  too,  are  seldom  adjudi- 
cated in  courts  of  last  resort— seldom,  at  least,  with  refer- 
ence to  the  importance  of  the  interests  which  they  may 
afiect.  When  we  consider  that  the  greater  part  of  the 
capital  of  this  country  is  invested  in  enterprises  which  are 
located  within  the  territorial  limits  and  subject  to  the  local 
laws  of  cities,  towns  and  villages,  we  realize  the  importance 
of  having  a  system  of  local  laws  which  interfere  with  and 
burden  the  ownership  of  property  as  little  as  possible,  but 
which  still  preserve  good  order  and  the  public  welfare. 
The  first  aim  of  this  book  is  to  show,  in  as  concise  a 
manner  as  is  consistent  with  clearness,  the  extent  to  which 
police  regulation  may  be  exercised,  under  general  and 
special  powers,  and  to  formulate  rules  that  will  be  appli- 
cable in  determining  the  validity  of  police  ordinances. 

There  seems  to  be  a  striking  lack  of  uniformity  in  the 
practice  observed  in  enforcing  ordinances.  'Numerous 
questions  arise  in  the  local  courts,  which  must,  for  want 
of  precedent,  be  decided  by  the  best  judgment  of  .the 
presiding  magistrate,  and  the  rules  of  pleading,  procedure 

(iii) 


IV  PREFACE. 

and  evidence  are  consequently  both  deficient  and  varied. 
The  rules  that  are  applied  in  higher  courts  are  often  poorly 
adapted  to  the  peculiar  practice  in  lower  courts;  and  even 
in  cases  where  local  courts  might  be  guided  or  aided  by 
decided  cases,  the  difficulty  of  finding  them  partially 
destroys  their  usefulness.  We  hope  to  prevent,  in  a 
measure,  the  necessity  for  laborious  research  by  classifying 
the  decided  cases  which  relate  to  the  practice  in  magis- 
trates' courts,  and,  if  possible,  to  aid  in  making  that 
practice  uniform. 

Our  labor  will  be  amply  rewarded  if  it  is  found  to  be  of 
some  assistance  to  those  who  enact  ordinances,  or  to  those 
who  are  called  upon  to  enforce  and  construe  them. 


DEDICATED 

TO   THE 

Cleveland  Law  Library  Association, 

ITS  LIBRARY  HAVING  FURNISHED  THE   MATERIAL 

FOR   THIS    BOOK. 

(V) 


TABLE  OF  CONTENTS. 


MUNICIPAL  POLICE   ORDINAiTCES. 


CHAPTER  I. 

Nature  of  Ordinances. 

§     1.    Definition  of  an  ordinance 1 

§     2.     Ordinances  are  laws 1 

§     3.     Necessity  of  formal  passage 3 

§     4.     Charter  prohibition  need  not  be  supplemented  by  an  ordi- 
nance   4 

§     5.     Must  be  passed  by  the  governing  body 4 

§     6.     Must  regulate  corporate  affairs 5 

I     7.     Must  not  regulate  civil  liabilities 6 

CHAPTER  II, 
Corporate  Powers, 

§     8.     Scope  of  corporate  powers 9 

§     8a.  Corporate  powers  discretionary 10 

§     9.     They  are  continuing 11 

§  10.     They  may  not  be  delegated 11 

§  11.     What  may  not  be  delegated 12 

I  12.     What  may  be  delegated 13 

§  13.     Discretion  in  granting  licenses 14 

§  14.     Source  of  corporate  powers 15 

§  15.     The  rule  as  to  source 16 

§  16.     Limitations  on  inherent  powers 18 

CHAPTER  III. 
Construction  of  Corporate  Powers. 

§  17.     Powers  construed  strictly  against  the  corporation 20 

§  18.     Limited  to  the  terms  of  an  enumeration..  21 

§  19.     Illustrations 22 

§  20.     Hule  oi  ejusdem  generis  in  en-avaersiiions 22 

§  21.     Concurrent  powers 23 

§  22.     The  greater  power  includes  the  less 24 

§  23.     Retroactive  ordinances 24 

§  24.     Conditions  precedent 24 

(vii) 


VUl  TABLE   OF    CONTENTS. 


KAPTER  IV. 
/ 

CONSTRUCTIOX   OF   CoMMON    PhKASES. 

§  25.     Common  phrases  in  grants  of  power 27 

§  26.     Corporate  purposes 28 

§  27.     General  welfare 29 

§  28.     Peace  and  good  government 29 

§  29.     Other  general  expressions 30 

§  30.     To  regulate 31 

§31.     To  suppress  and  restrain 33 

g  32.     Miscellaneous  expressions 34 

§  33.     General  rules  of  construction 34 

CHAPTER  V. 

Passage  of  Ordixances. 

Part  I. — Council  proceedings. 

§  34.     Necessity  of  formal  enactment 36 

§  35.     Statutory  directions  are  mandatory 36 

g  36.     Council  de  facto  ca,n.not  act 37 

§  37.     Meetings  of  the  council 38 

§  38.     Adjourned  and  special  meetings 39 

§  39.     Joint  action  of  bi-cameral  council 40 

§  40.     Quorum  in  joint  session 41 

§  41.     What  constitutes  a  quorum 41 

g  42.     Holdings  under  statutory  provisions 41 

g  43.     Majority  of  quorum  suflBcient 42 

g  44.     When  the  mayor  may  vote 43 

§  45.     Other  charter  provisions 43 

g  46.     When  a  vote  may  be  reconsidered 44 

g  47.     Readings 45' 

g  48.     Signature  of  the  clerk  of  the  council 46 

g  49,     Signature  of  the  mayor 46 

g  50.     The  mayor's  approval 47 

§51.     How  signified 47 

g  52.     Publication '. 48 

§  53.     Construction  of  provisions  regulating  the  time  of  publica- 
tion   50 

g  54.     The  newspaper  in  which  publication  may  be  made 51 

g  55.     Form  of  the  notice  published 52 

§  56.     Record  of  the  ordinance 52 

g  57.     What  the  record  must  contain 54 

g  58.     Record  of  votes 54 

g  59.     Informalities  subsequently  cured 56 

g  60.     Repeal 56 

g  60a.  Must  be  by  the  council 56 


TABLE    OF    CONTENTS.  iX 

^  61.  Form  of  the  repealing  act 57 

§  62.  Repeal  by  the  legislature  by  implication 57 

§  63.  Implied  repeal  by  passage  of  inconsistent  ordinance 58 

§  64.  Amendments *.....  59 

§  65.  Summary 59 

§  66.  Saving  clause  in  subsequent  ordinance 59 

^  67.  Effect  of  a  repeal  on  vested  rights 60 

Part  II. — The  ordinance  itself. 

§  68.  Form  of  the  ordinance 61 

§  69.  Constituent  parts 61 

§  70.  Ordinances  like  resolutions  in  form 61 

I  71.  The  title 62 

I  72.  The  introduction 63 

§  73.  Ordinances  need  not  recite  authority 63 

§  74.  Scope  of  the  ordinance 64 

§  75.  Reference  to  existing  ordinances 65 

§  76.  Time  of  going  into  effect 65 

§  77.  Penalty 65 

§  78.  Definiteness  of  expression 66 

^  79.  Definiteness  as  to  the  penalty 67 

§  80.  License  ordinances 67 

§  81.  Ordinances  against  nuisances 67 

^  82  Council  can  not  bind  its  successors 67 


CHAPTER  VI. 

Rules  of  Validity. 

•§  83.     Introduction 70 

§  84.     United  States  laws 70 

§  85.     Regulation  of  commerce 73 

§  86.     United  States  mails 75 

^  87.     United  States  license  laws .„..  75 

§  88.     Must  be  consistent  with  the  laws  of  the  state 75 

§  89.     Main  conflict  as  to  minor  offenses 76 

^  90.     The  punishment  may  be  greater 78 

§  91.  Prosecutions    under   either    law    no    bar   to    proceedings 

under  the  other 78 

§  92.     Alabama 79 

\  93.     Colorado 79 

§  94.     Connecticut 79 

§  95.     Dakota , 79 

§  96.     Florida 80 

g  97.     Georgia 80 

§  98.     Illinois 80 

I  99.     Indiana 81 


X  TABLE    OF    CONTENTS. 

§  100.     Iowa 82 

§  101.     Kansas 82 

§  102.     Kentucky 82 

§  103.    *Louisiana 82 

§  104.     Maryland 83 

g  105.     Massachusetts 83 

§  106.     Michigan 83 

I  107.     Minnesota 83 

§  108.     Missouri 84 

§  109.     Nebraska 84 

§  110.     North  Carolina 84 

§  111.     New  Jersey 85 

§  112.     New  York ." 85 

g  113.     Ohio 85 

§  114.     Oregon 85 

§  115.     Rhode  Island 85 

§  116.     South  Carolina 86 

§  117.     Tennessee 86 

§  118.     Texas 86 

§  119.     Utah 86 

§  120.     United  States  holdings 87 

§  121.     Conflict  with  state  license  laws 87 

§  122.     Policy  of  state  legislation  must  be  sustained 90 

§  223.     What  is  the  law  of  the  land 90 

§  124.     Power  derived  from  foreign  sovereignties 91 

§  125.     Must  be  consistent  with  corporate  charter 91 

g  126.     Other  requisites  of  validity 92 

g  127.     Reasonableness 92 

§  128.     When  discretion  of  council  final 92 

§  129.     When  not  final 93 

g  130.     Examples  of  reasonable  ordinances 93 

g  131.     Examples  of  unreasonable  ordinances 97 

g  132.     Restraint  of  trade 100 

g  133.     What  is  not  a  restraint  of  trade 102 

g  134.     What  is  not  a  restraint  of  trade 102 

g  135.     Discrimination 103 

g  136.     Examples  of  discrimination 105 

g  137.     Discrimination  as  to  non-residents 106 

g  138.     Once  void,  always  void 107 

g  139.     Partial  invalidity 108 

CHAPTER  VII. 

Remedies. 

g  140.     Introduction 110 

g  141.     Territorial  limits Ill 

g  142.     Extra-territorial  tffect 112 


TABLE    OF    CONTENTS.  XI 

§  143.     Ordinances  affect  what  persons , 113 

§  144.     When  parts  of  the  corporate  limits  exempt 115 

§  145.     Jurisdiction  over  railroad  property 117 

§  146.     Jurisdiction  over  streets 118 

§  147.     Penalties 118 

§  148.     The  kind  of  penalty  that  may  be  adopted 120 

§  149.     Penalties  are  not  licenses 120 

§  150.     Fines 121 

§  151.     Amount  of  the  fine 121 

^  152.     Cumulative  fines 122 

§  153.     Repetition  of  the  offense  more  heavily  punished 123 

§  154.     Costs  of  the  prosecution 124 

§  155.     Imprisonment  in  default  of  payment 124 

§  156.     The  power  strictly  construed ^ 125 

§  157.     Such  imprisonment  does  not  satisfy  the  fine 127 

§  158.     Imprisonment  as  a  penalty 127 

§  159.     Forfeiture 128 

§  160.     Illustrations ^ 128 

§  161.     Strays .'. 130 

§  162.     Notice  to  the  owner 131 

§  163.     Judicial  determination 132 

§  164.     Forfeiture  of  real  estate 132 

CHAPTER  VIII. 
Procedure — Pleading — Evidence. 

§  165.     Introduction 134 

§  166.     The  tribunal 135 

§  167.     Citizenship  does  not  disqualify  the  magistrate 137 

§  168.     Form  of  the  action 138 

§  169.     Nature  of  the  action 139 

§  170.     Holdings  of  the  different  states 141 

§  170a.  General  conclusion 145 

§  171.     Joinder  of  causes  of  action 145 

§   172.     The  complaint 145 

§  172a.  The  title  of  the  case 146 

§  173.     The  offense  must  be  distinctly  alleged 147 

§  174.     Reference  made  to  the  ordinance  violated 149 

§  175.     Exceptions  need  not  be  negatived 152 

§  176.     The  conclusion  of  the  complaint 152 

§  177.     Signature  to  the  complaint 153 

I  178.     Arrest  before  trial 153 

§  179.     What  the  warrant  should  contain 154 

§  180.     Arrests  made  without  a  warrant 155 

§  181.     Trial  by  jury 156 

§  182.     Arraignment  and  plea 157 

a  183.     Evidence 157 


Xll  TABLE    OF    CONTENTS. 

§  184.  Judicial  notice 157 

§  185.  How  ordinances  are  proved 159 

§  186.  Record  of  council  proceedings  as  evidence 161 

§  187.  Proof  of  publication 162 

§  188.  Presumption  that  ordinances  are  reasonable 164 

§  189.  Reasonableness  a  question  of  law 169 

§  190.  Proof  of  time  and  place  of  committing  the  offense 170 

§  191.  Proof  that  act  does  not  fall  within  exceptions 170 

I  192.  Testimony  of  the  defendant 170 

§  193.  Construction  of  ordinances 171 

§  194.  Construction  of  ordinances 172 

§  195.  Examples  of  application  of  rules  of  construction. 173 

§  196.  Defenses  to  prosecutions 176 

§  197.  Effect  of  repeal  of  an  ordinance 177 

§  198.  Former  conviction 177 

§  199.  Other  defenses 178 

§  200.  Doctrine  of  estoppel  applied  to  defenses 178 

§  201.  Estoppel  of  the  corporation 179 

§  202.  Form  of  the  judgment 180 

§  203.  The  order  of  commitment  to  jail 182 

CHAPTER  IX. 
Proceedings  in  Review. 

§  204.     Certiorari 184 

§  205.     Habeas  corpus 185 

§  206.     Injunction 185 

§  207.     Appeal 187 

§  208.     Error 188 

§  209.     The  record 188 

CHAPTER  X. 

Resolutions. 

§  210.     Xature  and  use  of  resolutions 193 

§  210a.  What  may  be  done  by  resolution 194 

CHAPTER  XI. 
Ordinances  Classified  According  to  their  Subject-Matter. 

g  211.     Nature  of  police  powers 198 

g  212.     Their  general  purpose 198 

§  213.     Their  general  purpose 199 

§  214.     Necessity  and  scope  of  health  regulation 202 

§  215.     Boards  of  health 203 

g  216.     Regulation  of  articles  of  food 204 

g  217.     Markets  204 

g  218.     Other  regulations  of  the  food  supply 207 


TABLE   OP    CONTENTS.  XUl 

§  219.     Slaughter  houses 208 

§  220.  Other  health  regulations;  cemeteries;  offal;  dead  animals; 

diseases;  miscellaneous  health  provisions 209 

§  221.     Fire 212 

§  222.     Fire  limits 212 

I  223.     Extentof  the  power 213 

I  224.     Streets 216 

§  225.     Care  of  the  streets 218 

I  226.     Grading 218 

i  227.     Paving 219 

§  228.     Sidewalks 221 

§  229.     Protection  of  streets 222 

§  230.     Obstructions 224 

§  231.     Examples  of  lawful  obstructions 224 

I  232.     Inclosures 225 

§  233.     Public  buildings 226 

§  234.     Other  buildings 226 

§  235.     Snow 228 

§  236.     Moving  buildings 229 

§  237.     Miscellaneous  obstructions ^ 229 

§  238.     Steam  railroads 231 

§  239.     Police  regulation  of  steam  railroads 232 

§  240.     Street  railways 234 

§  241.     Regulations 234 

§  242.     Sewerage  system 236 

I  243.     Water  supply '. 237 

I  244.     Gas  pipes : 238 

§  244a.  Telegraph  poles 239 

§  245.     Restrictions  on  ordinary  use  of  the  streets 240 

§  246.     Vehicles. 240 

§  247.     Routes  and  stands 241 

§  248.     Construction  of  vehicle  regulations 242 

§  249.     Strays 243 

§  250.     Nuisances 245 

§  251.     Definition  of  nuisances 245 

§  252.     Must  be  an  actual  nuisance 246 

§  253.     Judicial  determination 247 

§  254.     What  are  nuisances , 248 

§  255.     What  are  not  nuisances  ;)er  5e 249 

§  256.     Nature  of  license  power 249 

§  257.     Nature  of  licenses 251 

§  258.     Must  not  amount  to  a  tax 251 

§  259.     What  amount  may  be  charged 252 

§  260.     Examples 254 

§  261.     The  license 255 

§  262.     The  ordinance  authorizing  licenses 255 


XIV  TABLE    OF    CONTENTS. 

§  263.  Discretion  in  officers 256 

§  264.  The  penalty 258 

g  265.  Effect  of  a  license £59 

§  266.  Conditions 259 

§  267.  Revocability 260 

§  268.  Grading  and  discrimination 261 

§  2G9.  Miscellany 263 

§  270.  Business  privileges 263 

§  271.  Transient  dealers 264 

§  272.  Peddling 265 

§  273.  Amusements 266 

I  274.  Dogs 267 

§  275.  Liquor  licenses 267 

§  276.  Ordinance  provisions 268 

§  277.  Other  regulations  on  sale  of  liquors 269 

§  278.  Definition 270 

§  279.  Evidence  in  liquor  cases 271 

§  280.  Uniformity  in  licenses 272 

§  281.  Taxation 273 

§  282.  Local  assessments 273 

§  283.  Other  taxes 274 

§  284.  Mode  of  exercise  of  taxing  power 275 

§  285.  Amount  of  tax 276 

g  286.  Constitutional  restrictions 276 

§  287.  Discrimination 276 

§  288.  Sunday  ordinances '. 278 

§  289.  Appropriations  for  police  purposes 280 

§  290.  To  aid  the  administration  of  justice 280 

§  291.  To  employ  attorneys 281 

§  292.  Wharves 282 

§  293.  Conclusion  285 


Appendix  of  Forms 287 


TABLE  OF  OASES. 


[the  kbfekences  are  to  sections.] 


Abendroth  v.  Greenwich,  15. 

Academy  v.  Erie,  62. 

Adams  v.  Albany,  97,  121, 130. 

Adgar  v.  Mayor,  143. 

Ah  Kow  V.  Nunan,  84,  193. 

Ah  Liu,  Ex  parte,  144. 

Ahrens  v.  Fiedler,  51. 

Ah  Toy,  Ex  parte,  121. 

Alberger  v.  Mayor,  188. 

Albia  V.  O'Harra,  187. 

Alexander  v.  Bethlehem,  178. 

V.  Council,  169,  221. 

Allen  V.  Jones,  242. 

V.  Rogers,  75. 

V.  Taunton,  223. 

Allerton  v.  Chicago,  19,  241,  248,  260. 
Alton  V.  Hartford  Ins.  Co.,  188,  284. 

V.  Kirsch,  172a,  207. 

V.  Mulledy,  12,  210a. 

Alpers  V.  Brown,  220. 
Amboy  v.  Sleeper,  98. 
Ambrose  v.  State,  99. 
Americus  v.  Eldridge,  242. 
Ames  V.  Carlton,  7. 
Amesbury  v.  Ins.  Co.,  139. 
Amity  City  v.  Clementz,  147. 
Anderson  v.  Commissioners,  16. 

V.  Gas  Co.,  11,  244. 

Andrews  v.  Ins.  Co.,  15. 
Anon.,  44. 

Appleton  V.  Hopkins,  264. 
Argenti  v.  San  Francisco,  200. 
Arkell  v.  St.  Thomas,  278. 
Arnold  v.  Holdbrook,  7. 
Arnoult  v.  New  Orleans,  8. 
Aronheimer  v.  Stokley,  206. 
Ash  V.  People.  258,  259. 
Asheville  v.  Means,  283. 
Ashton  V.  Ellsworth,  4,  16. 
Asylum  v.  Troy,  224. 
Athens  v.  Long,  268,  287. 

V.  Railroad  Co.,  195. 

Atkinson  v.  Transportation  Co.,  131. 
Atty.  Gen.  v.  Campbell,  223. 


Atty.  Gen.  v.  Heisohn,  237. 
Auburn  v.  Eldridge,  174. 
Aull  V.  Lexington,  220. 
Austin  V.  Murray,  30,  220. 


B. 


Babcock  v.  BuflFalo,  252. 
Baker  v.  Boston,  188,  214. 

V.  Cincinnati,  259,  260,  273,  280. 

V.  Cushman,  46. 

V.  Normal,  139,  229. 

V.  Paris,  276. 

V.  Scofield,  185. 

Baldwin  v.  Green,  108. 

V.  Murphy,  98,  180. 

V.  Oswego,  24. 

V.  Smith,  67,  253,  265,  267. 

Baldwin  Co.  v.  Retailers,  121. 
Ball  V.  Fagg,  186. 
Baltimore  v.  Brannan,  8a. 

V.  Clunet,  188. 

V.  Howard,  12. 

V.  Hughes,  193. 

V.  Johnson,  52. 

V.  Marriott,  8a. 

V.  Pennington,  8a. 

V.  Hadeeke,  131. 

V.  Scharf,  10. 

Bancroft  v.  Cambridge,  212. 
Bank  v.  Navigation  Co.,  15,  124. 

V.  Chillicothe,  15,  17. 

Banking  Co.  v.  Jersey  City,  206. 
Barbier  t).  Connelly,  130. 
Barclay,  In  re,  263. 
Barker  v.  Commonwealth,  237. 

V.  Smith,  63. 

Barling  w.  West,  131,  133. 

Barnert  v.  Paterson,  41,  43. 

Barnett  v.  Newark,  35,  52. 

Barr  v.  Auburn,  58, 185. 

Barter   v.    Commonwealth,   148,  166, 

168. 
Barthet  v.  New  Orleans,  219. 
Barton  v.  Pittsburgh,  47,  71,  186. 
Cxv) 


XVI 


TABLE    OF    CASES. 


Baton  Rouge  v.  Cremonini,  135,  209. 
Bauer  v.  Avondale,  276. 
Baumgard  v.  Mayor,  163. 
Baumgartner  v.  Hasty,  75,  130,  222, 

253. 
Baxter's  Petition,  115. 
Baj'er  v.  Hoboken,  54. 
Bearden  v.  Madison,  1,  130,  239. 
Beasley  v.  Beckley,  181,  184,  204. 
Beaty  v.  Gilraore,  234. 
Beck  V.  Hansconi,  40. 
Bedell,  Ex  parte,  52,  56, 157. 
Beecher  v.  People,  166. 
Beekman's  Case,  39. 
Begein  v.  Anderson,  142. 
Bell  V.  Manvers,  122. 

V.  Quebec,  85. 

Benefield  v.  Hines,  121. 
Bennett  v.  Birmingham,  143,  287. 
— —  V.  People,  121. 
Benninger,  Ex  parte,  260. 
Bergen  v.  Clarkson,  160. 
Bergman  v.  Cleveland,  277. 

V.  Railway  Co.,  71. 

Beronjohn  v.  Mobile,  131. 

Beer  Co.  r.  Mass.,  212. 

Berry  v.  People,  98. 

Bessoinies  v.  Indianapolis,  15,  220. 

Bethalto  v.  Conlv,  187,  209. 

Bickerstaff,  In  re,  12,  263,  266. 

Bills  V.  Belknap,  229. 

Birdsall  v.  Clarke,  10. 

Bishops.  Railroad  Co.,  1^5. 

Blake  v.  Walker,  15. 

Blanchard  v.  Bissell,  35,  49,  210a. 

Blankley  v.  Winstanley,  17. 

Bliss  V.  Kraus,  213. 

V.  Ball,  229. 

Block  V.  Jacksonville,  185,  275. 
Bloom  V.  Xenia,  35,  47. 
Bloomfield  v.  Trimble,  28,  100. 
Bloomington  v.  Wahl,  132,  217. 

V.  Strehle,  279. 

Board  v.  Heister,  15,  219,  245. 
Board  of  Excise  v.  Barrie,  267. 
Boehm  v.  Baltimore,  215,  220. 
Bogart  V.  Indianapolis,  131,  220. 

V.  New  Albany,  99. 

Bohle  V.  Stannard,  73. 
Bolte  V.  New  Orleans,  160. 
Bolton  V.  Cleveland,  24,  188. 
Bonsall  v.  Lebanon,  164,235. 
Boom  V.  Utica,  263. 
Booth  V.  Carthage,  63. 

V.  State,  223. 

Borough  V.  Shortz,  242. 
Boston  V.  Richardson,  240. 

V.  Schaffer,  260,  261,  262,  273 

V.  Shaw,  242 

Bosworth  V.  Hearne,  132. 


Bott  r.  Pratt,  1. 

Bowers  v.  Coukton,  223,  234. 

Bowling  Green  v.  Carson,  130,  265. 

Bowman  v.  St.  John,  77. 

Boj'd  V.  State.  267. 

Braddy  v.  Milledgeville,  213. 

Brady  v.  Gas  Co.,  222. 

V.  Ins.  Co.,  213,  223. 

Branhara  v.  San  Jose,  15. 
Brannahan  v.  Hotel  Co.,  247. 
Branson  v.  Philadelphia,  265. 
Breauxs  Bridije  v.  Dupuis,  50,  68. 
Brenham  v.  Bicker,  132. 
Breninger  v.  Belvidere,  16,  29. 
Brewster  v.  Davenport,  11,  58,  188. 

V.  Hartley,  85. 

Brieswick  I'.  Brunswick,  155. 
Bright  V.  McCuUough,  287. 

V.  Toronto,  130,  160,  287. 

Brodie,  In  re,  263. 

Broeck  v.  Welch,  137. 

Bronson  v.  Oberlin,  30. 

Brooklyn    v.    Breslin,     10,    13,    134, 

229. 
Brooklyn  v.  Cleves,  134,  171,  26i 

V.  Nodine,  246. 

V.  Toy n  bee,  112. 

Brookville  v.  Gagle,  168,  IV 0. 
Brophy  v.  Perth  Amboy,  1 70. 
Brown  v.  Denver,  84. 

V.  Duplessis,  238,  240. 

V.  Hunn,  223. 

V.  Nugent,  195. 

Brown  rille  v.  Cook,  28,  109, 170. 
Brush  V.  Carbondale,  188. 
Bryan  v.  Bates,  180. 

V.  Page,  3,  210. 

Buell  V.  State,  84. 
Buffalo,  In  re,  58. 

r.  Mulchady,  145. 

V.  Webster,  196,  217,  277. 

Bull  V.  Quincy,  3,  80,  269,  279. 
Bullock  V.  Gromble,  159. 
Burch  V.  Savannah.  287. 
Burckholter  v.  McConnellsville,  6. 
Burgeois,  Ex  parte,  108. 
Burlington  v.  Baumgardner,  30. 

V.  Dennison,  12,  50,  210. 

V.  Estlow,  63. 

V.  Ins.  Co.,  210a,  258,  262,  268. 

V.  Kellar,  17,  100,  121,  168. 

V.  Lawrence,  22,  31,  256,  278. 

Burmeister  v.  Howard,  1,  196. 
Burmeister,  In  re,  224. 
Burnett,  Ex  parte,  15, 163,  275. 
Burn  ham  v.  Chicago,  227. 
Burr  V.  Atlanta,  271,  287. 
Burrill  v.  Boston,  290. 
Butler  V.  Passaic,  210, 
Butler's  Appeal,  270. 


TABLE    OF    CASES. 


XVll 


Byars  v.  Mt.  Vernon,  207,  279. 
Byers  v.  Trustees,  275. 


Cabot  V.  Eome,  26. 
Cady  V.  Barnesville,  84. 
Caesar  v.  (^artwright,  210. 
Caine  v.  Syracuse,  8a. 
Cairo  v.  Bross,  18,  66. 
Caldwell  v.  Alton,  15,  217,  245. 
Camden    v.    Bloch,     203,    204, 

209 
Camden  v.  Mulford,  125,  204. 
Campbell  v.  Kingston,  292. 
Canal  Co.  v.  St  Louis,  292. 
Canfleld  v.  Smith,  24. 
Cannon  v.  New  Orleans,  292. 
Can  thorn  v  State,  178. 
Canton  V.  Nist,  122.  288. 
jCantril  v.  Sainer,  71,  139. 
Cape  Girardoiiu  v.  Riley,  72. 
Carlisle  v.  Baker,  234. 
Carlton  St.,  In  re,  58. 
Carmel  v.  Wabash,  31. 
Carr  v.  St.  Louis,  125. 
Carroll  v.  Tuscaloosa,  284. 

V  Wall.  44. 

Carson  v  Bloomington,  203, 
Carter  v.  Dow,  213,  274. 

V.  Dubuque,  15. 

V  State,  270. 

Cartersville  v.  Lanham,  249. 
Carthage  v.  Buchner,  81,  277. 
Casby  v.  Kailroad  Co.,  238. 
Case  V  Hall,  173. 

V  Mobile,  174,  184. 

Cass.  Ex  parte,  292 
Cassinello,  Ex  parte,  213,  254. 
Cedar  Rapids  v.  Holcomb,  220. 
Centerville  v.  Lanham,  143,  213. 

V.  Miller,  31. 

Central  v.  Sears  210a. 
Chafin  V.  Waukesha  Co.,  170. 
Chamberlain  v.  Evansville,  62. 
Chambers  v.  Trust  Co.,  7. 
Chariton  v.  Barber,  31. 

V.  HoUiday,  200. 

Charles  v.  Hoboken,  10. 
Charleston  v.  Ahrens,  26. 

V.  Benjamin,  288. 

V.  Chur,  174,  186, 

V.  Church,  26,  67,  130. 

V.  Elford,  144 

V.  Goldsmith,  12. 

u  Kleinback,  181. 

V.  Oliver,  150,  168,  256. 

V.  Reed,  15,  199,  222. 

Chastain  v.  Calhoun,  121. 
Chebanse  v.  McPherson,  213. 


207, 


Cherokee  v.  Fox,  177, 272. 
Chess  V.  Birmingham,  287. 
Chicago  V.  Bartee,  131,  272. 

V.  Crosby,  228. 

V  Evans,  6. 

V.  Gosseter,  195. 

V.  Hobson,  195. 

V.  McGinn   130. 

V.  O'Brien,  235. 

V.  Packing  Co.,  142, 

V.  Quinby,  152. 

V.  Railroad  Co.,  195. 

V.  Rumpff,  181,  132,   185,   198, 

263. 
Chicago  Packing  Co.  v.  Chicago,  256. 
Childress  v.  Nashville,  213. 
Chilvers  v.  People,  85,  257,  264. 
Chin  Yan,  Ex  parte,  130,  188,  202. 
Christie  v.  Maiden,  15. 
Christopher  v.  Portage,  228. 
Church  V.  Baltimore,  73,  188. 

V.  New  York,  1,  220. 

Church,  In  re,  280. 
Cincinnati  v.  Bickett,  47,  54. 

V.  Bryson,  259,  268. 

V.  Buckingham,  218,  249,  264. 

V.  Gwynne,  170. 

V.  Penny,  242. 

V.  Rice,  288. 

V.  White.  226. 

City  V.  Ahrens,  275. 

V.  Church,  275. 

V.  Duncan,  209. 

V.  Erie  Railroad  Co.,  130,  241. 

V.  Hughes,  209. 

V.  Lenze,  223. 

V.  Railroad  Co.,  238. 

V.  Telegraph  Co.,  244a. 

City  Council  v.  Church,  60a. 
City  of  Kansas  v.  Collins,  271.  ' 
City  of  London's  Case,  158. 
Claiborne  v.  Brooks,  128. 
Clark  V.  Davenport,  17. 

V.  Elizabeth,  201. 

V.  Fry,  231. 

V.  Le  Creu,  132, 

V.  Lewis,  159. 

V.  New  Brunswick,  283. 

V.  South  Bend,  18,  223, 

Clarke's  Case,  158. 
Clason  V.  Milwaukee,  130,  189. 
Clevenger  v.  Rushville,  174. 
Clinton  v.  Phillipi,  131. 
Clintonville  v.  Keeting,  277, 
Coates  V.  Dubuque,  114,  188. 

V.  New  York,  73,  174,  220. 

Coffin  V.  Nantucket,  12. 
Cohens  v.  Virginia,  87. 
Coldwater  v.  Tucker,  142. 
Cole  V.  Hall,  257,  265. 
Coleman  v.  Railroad  Co.,  241. 


XVlll 


TABLE   OF  CASES. 


Collins  V.  Hatch,  15,  16,  17,  19, 131, 

249,  254. 
Collins  V.  Louisville,  285. 
Collinsville  v.  Scanland,  195. 
Colson  V.  State,  271. 
Columbia  v.  Harrison,  152,  166. 
Columbus  V.  Cutcamp,  267. 

V.  Flournoy,  284. 

V.  Jacques,  217,  233,  237. 

V.  Street  Ky.  Co.,  241. 

Commissioners  v.  Chissom,  170. 

V.  Detroit,  8. 

V.  Duckett,  8a. 

V.  Gas  Co.,  131. 

V.  Hudson,  243. 

V.  Mighils,  17. 

V.  Nell,  144. 

I V.  Powe,  195. 

", V.  Silvers,  210a, 

Commonwealth  v:  Bean,  130,  173. 

V.  Blaisdell,  234. 

V.  Boston,  244a. 

V.  brennan,  267. 

V.  Brooks,  21,  76,  130. 

V.  Byrne,  264. 

V.  Chase,  185. 

V.  Curtis,  173. 

V.  Davis,  52,  57,  1 30,  237. 

V.  Dow,  139,  193,  249,  275. 

V.  Duane,  247. 

V.  Elliott,  130. 

V.  Fahey,  73. 

V.  Farnum,  272. 

V.  Gage,  130,247. 

V.  Gay,  176. 

V.  Goodnow,  105. 

V.  Harris,  234. 

V.  Hartford,  242. 

V.  Jones,  272. 

■».  King,  237. 

V.  Kirby,  267. 

V.  Markham,  213. 

V.  Mathews,  53,  130,  247. 

V.  Passmore,  231. 

V.  Patch,  130,  188,  213. 

V.  Reimer,  234. 

V.  Rice,  218. 

V.  Robertson,  130. 

V.  Rowe,  173. 

V.  Roy,  78. 

V.  Rush,  237. 

V.  SteflFee,  130,  213. 

V.  Stodder,  15,  130,  187,  247,259. 

V.  Stokley,  263. 

V.  Turner,  27,  105,  181,  218,  275. 

V.  Vorhis,  16. 

V.  Wentworth,  234. 

V.  Wilking,  131,  152. 

V.  Worcester,  130,  167,  160,  176, 

189 
Oonboy  ».  Iowa  City,  49,  52,  56,  184. 


Cook  V.  Burlington,  243. 

V.  Johnston,  6. 

V.  Pennsylvania,  272. 

Cook  Co.  V.  McCrea,  15. 
Cooper  V.  Alden,  124. 

V.  People,  170. 

V.  Savannah,  122, 

Corbett  v.  Duncan,  204, 
Cornwall  v.  West  Nissoni,  290. 
Cornwallis  v.  Carlisle,  15,  17,  28,  29. 
Corrigan  v.  Gage,  139,  189. 
Corry  v.  Gaynor,  16. 
Corson  v.  Maryland,  137. 
Cory  V.  Somerset,  59. 
Cotter  V.  Doty,  159,  249. 
Coulterville  v.  Gillen,  121,  207. 
Council  V.  Ahrens,  130. 

V.  Pepper,  143,  167. 

V.  Seeba,  174. 

V.  Van  Roven,  279. 

Council  of  Mongomery,  Ex  parte,  155. 
County  of  Amador  v.  Kennedy,  135. 
County  of  San  Louis  Obispo  v.  Hen- 
dricks, 38. 
Couteulx  V.  BuflFalo,  15. 
Covington  v.  Boyle,  41. 

V.  Dressman,  200. 

V.  Ludlow,  186. 

V.  Nelson,  24. 

Cox  V.  St.  Louis,  184. 
Coyne,  In  re,  262. 
Craig  V.  Bennett,  202. 
Cranston  v.  Augusta,  204,  274. 
Crashaw  v.  Roxbury,  290. 
Creighton  v.  Manson,  34,  52. 

V.  Scott,  227. 

Croll  V.  Village,  63. 
Cronin  v.  People,  73,  134. 
Cross  V.  Morristown,  210,  229. 
Crotty  V.  People,  262. 
Crowell  V.  Hopkinton,  290. 
Crowley  v.  Railroad  Co.,  145,  239. 
CuUen  V.  Carthage,  292. 
Cullinan  v.  New  Orleans,  122. 
Cummings  v.  Fitch,  125. 

V.  Railroad  Co.,  248. 

V.  Savannah,  84,  85,  160. 

Gushing  v.  Adams,  237. 

V.  Boston,  234. 

Cutcomp  V.  Utt,  47. 
Cutllff  V.  Albany,  268,  287. 
Cutter  V.  Russellviile,  58, 


D. 

Daggett  V.  State,  228, 
Dane  r.  Mobile,  195. 
Daniel  v.  Richmond,  137. 
D'Antignac  r.  Augusta,  164. 
Danville  v.  Shelton,  15,  17,  85. 


TABLE    OF    CASES. 


XIX 


Darling  v.  St.  Paul,  11,  80,  262. 
Darst  V.  Illinois,  163. 
Daublin  v.  New  Orleans,  234. 
Davenport  v.  Bird,  170. 

«.  Kelly,  11,134,217. 

V.  Kleinschmidt,  132. 

Davies  v.  Morgan,  162. 
Davis  V.  Clifton,  252. 

V.  Clinton,  243. 

V.  Macon,  268,  287. 

V.  Mayor,  30,  241. 

V.  New  York,  15. 

V.  Read,  10. 

V.  State,  121. 

V.  Winslow,  231. 

Daws  V.  Hightstown,  8,  213. 
Day  V.  Clinton,  66,  192. 

V.  Green,  11,  236. 

V.  Jersey  City,  34. 

Dean  v.  Borchenius,  227. 

V.  Madison,  15. 

DeBere  v.  Girard,  135. 
Decorah  v.  BuUis,  5. 

V.  Dunstan,  13,  63,  263. 

V.  Gillis,  199. 

Deel  V.  Pittsburgh,  166. 
Delaney,  Ex  parte,  28,  188. 
Delphi  V.  Evans,  3,  9,  58,  210,  226. 
Dempsey  v.  Burlington,  74. 
Denniston  v.  Clark,  226. 
Denver  v.  Mullen,  252. 
Des  Moines  v.  Gilchrist,  36. 

V.  Hall,  243. 

V.  Railroad  Co.,  67. 

Desmond  v.  Jefferson,  223. 
Detroit  v.  Blakeby,  8. 
Dietz  V.  Central,  93, 121, 167,  170,  202. 
Dimes  v.  Petty,  7. 
Dinwiddie  v.  Rushville,  5,  36. 
Distilling  Co.  v.  Chicago,  258, 260,  264. 
Dist.  Columbia  v.  Waggainan,  188. 
Dodge  V.  Council  Bluffs,  206. 
Domestic  Tel.  Co.  v.  Newark,  244a. 
Donnaher  v.  State,  239. 
Donnelly  v.  Clarke  Tp.,  268. 
Donovan  v.  Vicksburgh,  163,  249. 
Douglass  V.  Commonwealth,  223. 

V.  Placerville,  15. 

V.  Virginia  City,  15. 

Douglass,  Ex  parte,  119. 
Douglass,  In  re,  24. 
Douglassville  v.  Johns,  188. 
Drake  v.  Rairoad  Co.,  210. 
Dubois  V.  Augusta,  130,  220. 
Dubuque  v.  Benson,  243. 

V.  Lieber,  284. 

V.  Maloney,  243. 

V.  Stout,  292. 

Ducat  V.  Chicago,  258,  260,  264. 
Duck  wall  V.  New  Albany,  30,  248. 
Dunbar  v.  San  Francisco,  15. 


Dunham  v.  Hyde  Park,  226. 

V.  Rochester,  131,  133,  188. 

Durkin,  In  re,  54. 
Dutten  V.  Hanover,  24. 
Dutton  V.  Aurora,  15. 
Dwyer  v.  Brenham,  56,  184. 
Dyer  v.  Chase,  228. 


E. 


Eager,  In  re,  227. 
East  Hartford  v.  Hartford  Co.,  8. 
Eastman  v.  Chicago,  195. 
East  St.  Louis  v.  Gas  Co.,  244, 

V.  Trustees,  257,  265. 

V.  Wehrung,  268. 

Eddleston  v.  Barnes,  198. 

Edenton  v.  Capeheart,  143. 

Egan  V.  Chicago,  210a. 

Eldora  v.   Burlingame,  5,  8,  139,  187. 

Elizabethtown  v.  Lefler,  35,  185. 

V.  Woodruff,  209. 

Elk  Point  V.  Vaughn,  95,   184,   188, 

189. 
Ellerman  v.  McMains,  85. 
Elmendorf  v.  Ewen,  58. 
Elwood  V.  Bullock,  263. 
Emporia  v.  Volmer,  170. 
Erie  v.  Reed's  Exec.,  114,  188. 
Erwin  v.  Township,  43. 
Esling's  Appeal,  71. 
Eufaula  v.  McNab,  17. 
Evansville  v.  Martin,  292. 
Everett  v.  Council  Bluffs,  229,  252, 

255 
Ewbanks  v.  Ashley,  35,  56,  168,  187, 

202,  255. 
Express  Co.  v.  Mobile,  130. 

V.  St.  Joseph,  287. 

Eyerman  v.  Blaksley,  147. 


F. 


Faribault  V.  Wilson,  149, 174, 187, 2ia 
Farnsworth  v.  Pawtucket,  16. 
Farrel  v.  London,  172a. 
Fant  V.  People,  98. 
Farwell  v.  Chicago,  248. 

V.  Smith,  175. 

Fecheimer  v.  Louisville,  137. 
Fennell  v.  Bay  City,  106. 

V.  Guelph,  283. 

Ferguson  v.  Selma,  15. 
Ferrenbach  v.  Turner,  220. 
Ferry  Co.  v.  Davis,  132,  263. 

V.  St.  Louis,  257,  258,  270. 

Fertilizing  Co.  v.  Hyde  Park,  16. 
Fielding  v.  Commissioners,  223. 
Fink  V.  Milwaukee,  170. 


XX 


TABLE    OF   CASES. 


Fire  Dep't.  v.  Helfen stein,  280, 
First  Municipality  v.  Blineau,  135. 

V.  Cutting,  70,  85,  150,  193,  210. 

Fisher  v.  Graham,  24. 

V.  Harrisburp:,  130,  188. 

Fiske,  Ex  parte,  53,  223. 

Fitch  V.  Finchard,  136. 

Flanagan  v.  Plainlield,  173,  202,  283. 

Flora  V.  Lee,  185,  191,209. 

Florence,  Ex  parte,  15. 

Floyd  V.  Eutontin,  169,  170. 

Fort  Smith  v.  Ayers,  30,  258,  259. 

V.  Dodson,  161. 

Foster  v.  Brown,  100,  121. 

V.  Kenosha,  283. 

V.  Koads,  143. 

Fowl  V.  Alexandria,  256, 

Fowler,  In  re,  242. 

Fox  V.  Winona,  234. 

Frank,  Ex  parte,  134,  136,283. 

Franklin  v.  Westfall,  22,  31,  62. 

Frazee's  Case,  131,  245. 

Freeport  v.  Marks,  188. 

French  v.  Quincy,  289, 

Fretnellr.  Troy,  134. 

Friday  v.  Floyd,  159. 

Fuller  V.  State,  121. 

Furman  v.  Huntsville,  170,  209. 

Furman  St.,  In  re,  9. 


G. 


Gabel  v.  Houston,  1,  2,  130,  188,  288. 
Gahagan  v.  Railroad  Co.,  239. 
Gale  V.  Kalamazoo,  135,  217,  234. 

V.  South  Berwick,  290. 

Galerno  v.  Rochester,  64. 
Gall  V.  Cincinnati,  32,  226. 
Garden  City  v.  Abbott,  143. 
Gardner  v.  People,  98. 
Garland  v.  Towne,  234. 
Garrett  v.  James,  63,  74. 

V.  Messenger,  264. 

Garrison  v.  Chicago,  225,  243. 
Gartside  v.  E.  St.  Louis,  6, 134,  206, 

229,  248,  287. 
Garver,  In  re,  227. 
Garvin  v.  Wells,  184. 
Gas  Co.'s  Appeal,  132. 
Gas  Co.  V.  Des  Moines,  1, 6, 9, 188,  244. 

V.  San  Francisco,  210a, 

V.  Toberraan,  68. 

Gaslight  Co.  v.  Dunn,  11. 

V.  Gas  Co.,  244. 

V.  Middleton,  225,  244. 

V.  Saginaw,  126. 

Gass  V.  Greenville,  143. 
Gates  V.  Milwaukee,  263. 
Geneva,  The,  292. 
Genoa  v.  Van  Alstine,  201. 


Gibson  v.  Kauffield,  272. 
Gilcrist  v.  Schmiddling,  162,  249. 
Gilhara  v.  Wells,  265. 
Gillmorev.  Lewis,  290. 
Oilman  v.  Wells,  201. 
Gilmore  v.  Holt,  143. 
Glasby  v.  Morris,  242. 
Glasgow  V.  Kowse,  286,  287. 

V.St.  Louis,  224. 

Glenn  v.  Baltimore,  188. 
Goddard,  In  re,  170,  235. 

V.  Jacksonville,  275. 

,  Petitioner,  130. 

Goldsmith  v.  New  Orleans,  268. 
Goldstraw  v.  Duckworth,  234. 
Goldthwaite    v.    Montgomery,    174, 

207. 
Goodrich  v.  Brown,  184. 
Gormley  v.  Day,  67. 
Gorsuth  V.  Butterfield,  279. 
Goshen  v.  Crary,  7. 

V.  Croxton,  170. 

V.  Kern,  174. 

Gosling  V.  Velvey,  43. 

Gosselink  v.  Campbell,  143,  161. 

Goszler  v.  Georgetown,  9. 

Graffty  v.  Rushville,  137,  245. 

Graham  v.  Carondelet,  51. 

Grand  v.  Guelph,  268. 

Grand  Rapids  v.  Hughes,  19, 147,  232. 

Graves  v.  Bloomington,  220. 

V.  Shattuck,  231,  236. 

Gray  v.  Brooklyn,  21. 
Greely  v.  Jacksonville,  63. 

V.  Passaic,  170a,  173. 

Green  v.  Canal  Co.,  145,  239. 

V.  Cape  May,  210,  210a,  223. 

V.  Indianapolis,  174,  187. 

V.  Lake,  223. 

V.  Savannah,  213,  254,  277. 

Green  Bay  v.  Brauns,  68. 
Greencastle  v.  Martin,  249. 
Greenfield  v.  Mook,  151, 169. 
Greensboro  v.  Mullins,  121. 
Greensborough  v.  Shields,  174. 
Greensburgh  v.  Corwin,  170. 
Greenwood  v.  State,  117. 
Gregory  v.  Bridgeport,  12. 

V.  City  of  N.  Y.,  261. 

,  Ex  parte,  188,  246. 

Greystock,  In  re,  156,  263. 
G/ierson  v.  County,  188. 
Griffin  v.  Powell,  248. 
Grills  V.  Jonesboro,  121, 
Grimmell  v.  Des  Moines,  210, 
Gridley  v.  Bloomington.  130,  236. 
Griswold  v.  Bay  City,  226. 
Groove  v.  Fort  Wayne,  266. 
Grover  v.  Huckins,  147,  148, 
Guillotto  r.  New  Orleans,  160,  216. 
Gunnarsoba  v.  Sterling,  22,  276. 


TABLE    OF    CASES. 


XXI 


Gurner  v.  Chicago,  227. 
Guy  V.  Baltimore,  137. 


H. 


Hadley  v.  Mayor,  36. 
Hagaman,  In  re,  292. 
Hale  V.  Houghton,  26. 
Hall,  In  re,  62. 

V.  Minturn,  132. 

V.  Nixon,  150,223. 

Haller  v.  Sheridan,  213. 
Hamilton  v.  Cartilage,  151. 

V.  State,  118. 

Hammett  v.  Philadelphia,  227. 
Hanger  v.  Des  Moines,  290. 
Hannibal  v.  Kailroad  Co.,  224. 

V.  Winchell,  224,  272. 

Hansom,  Ex  parte,  287. 

Harbaugh    v.    Monmouth,   139,    191, 

207,  275. 
Hardenbrook   v.  Ligionier,  150,  174. 
Hardy  v.  WalthHm,'223. 
Harker  v.  Mayor,  174,  184. 
Harmon  v.  Chicago,  85,  254. 
Harrington  v.  Corning,  24. 
Harris  v.  Hamilton,  78. 

V.  Livingston,  188,  220. 

Harrison  v.  Baltimore,  188,  220. 

V.  London,  132 

V.  Vicksburg,  270. 

Hart  V.  Albany,  148. 

V.  Burnett,  124. 

Hartford  v.  Talcott,  7. 
Harvey  v.  Boyd,  209. 

V.  Sloan,  143. 

Haskell  v.  Bartlett,  54. 
Hatcher  v.  Columbus,  284. 
Havanna  v.  Vanlaningham,  213,  248. 
Hawk  V.  Marion  Co.,  290. 
Hawkins  v.  Huron,  72. 
Hayden  v.  Noyes,  137. 
Hayes  V.  Appleton,  131,  133. 

V.  Vincennes,  78. 

Hays  V.  Jones.  24. 

Haywood  v.  Mayor,  84,  89. 

Heath  v.  Kailroad  Co.,  195. 

Heeney  v.  Sprague,  7 

Heilbron,  Ex  parte,  130,  218,  219. 

Heine  v.  Commissioners,  283. 

Heise  v.  Columbus,  30,  116,  152,  159, 

160. 
Heisembrittle  v.  Charleston,  26,  130, 

275. 
Heiskell  v.  Baltimore,  41. 
Heland  v.  Lowrell,  ]. 
Hellen  v.  Noe,  152,  249,  254. 
Henback  v.  State,  121. 
Henderson  v.  Covington,  15. 
Hendersonville  v.  McMinn,  174. 


Henke  v.  McCord,  159, 

Hennessy  v.  Connolly,  181. 

Herford  v.  Omaha,  15. 

Hershoff  v.    Beverly,    71,   168,   172a, 

179,  190,  264. 
Hesketh  v.  Braddock,  132,  167. 
Herzo  v.  San   Francisco,  15,  35,  123. 
Hexamer  v.  Webb,  234. 
Hickey  v.  Railroad  Co.  11,  24. 
Highland  v.  Galveston,  164. 
Highley  v.  Bunce,  17,  52. 
Hill  V.  Atlanta,  121. 

V.  Dalton,  173,  181. 

V.  Thompson,  84. 

Himmelman  v.  Hoadley,  226. 

V.  Satterlee,  228. 

Hinckley  v.  Belleville,  22. 
Hine  v.  New  Haven,  223. 
Hines  v.  Lockport,  227. 
Hitchcock  V.  Galveston,  11,  24. 
Hites  V.  Dayton,  217. 
Ho  Ah  Kow  V.  Neenan,  15. 
Hoblyn  v.  Kex,  125. 
Hoboken  v.  Gear,  52,  53. 

V.  State  238. 

Hodges  V.  Nashville,  283. 

Hoffman  v.  St.  Louis,  9,  226. 

Holberg  v.  Macon,  287. 

Holland  v.  San  Francisco,  59, 188, 193. 

Holhvedell,  Ex  parte,  150,  170. 

Hooksett  V.  Amoskeag  Co.,  147,  229. 

Hopkins  ?;.  Swansea,  1. 

Horn  V.  People,  6,  7,  10,  292. 

Horner  v.  Rowley,  45. 

Horst  V.  Moses,  225. 

Hospital  V.  Stickney,  260. 

House  V.  Slate,  256. 

Hovey  v.  Mayo,  226. 

Howard  v.  liobbins,  252. 

V.  Savannah,  23,  155. 

Hubbard  v.  Patterson,  215, 
Hudson  V.  Geary,  288. 

V.  Thorne,  206. 

Huffsmith  v.  People,  89,  93. 
Hughes  V.  People,  93. 
Humboldt  v.  McCoy,  74. 
Huntineton  v.  Cheesbro,  31,  173. 

V.  Pease,  173,  174. 

Huntsville  v.  Phelps,  151. 
Hurber  v.  Baugh,  160. 
Hurl,  Ex  parte,  268. 
Hutchinson  v.  Pratt,  56. 
Hyde  Park  v.  Borden,  78. 
Hydes  v.  Joyes,  10,  11,  138. 


111.  Cent.  R.  R.  Co.  v.  Galena,  195. 
Independence  v.  Moore,  213. 
V.  Trouvalle,  185. 


XXII 


TABLE   OF   CASES. 


Indianapolis  v.  Blythe,  99. 

V.  Fairchild,  99. 

V.  Gas  Co.  1,  18,  224. 

■^ V.  Im berry,  210a. 

V.  Miller,  232. 

V.  Mansur,  24. 

Information  v.  Oliver,  172a,  174,  184, 

279. 
Ingham  v.  Railroad  Co.,  238. 
Insurance  Co.  v.  Augusta,  284,  287, 

V.  O'Connor,  131. 

Intendant  v.  Chandler,  204. 
In  wood  V.  State,  181. 
Irvine  v.  Wood,  234. 
Israel  v.  Jacksonville,  168. 


Jacks  V.  State,  273. 
Jackson  v.  Bowman,  256. 

V.  Boyd,  171. 

V.  People,  204. 

Jackson  Co.  v.  Brush,  10. 

Jackson  Co.  Ry.  Co.  v.  Inter-State  Ry. 

Co,  132. 
Jacksonville  v.  Block,  168. 

V.  Holland,  209. 

V.  McConnell,  15. 

Janesville  v.  Railroad  Co.,  27,  174. 
Jarman  v.  Patterson,  249. 
Jefferson  v.  Courtmire,  108. 
Jelly  V.  Dilly,  181. 
Jenks  V.  Williams,  7. 
Jenkins  v.  Cheyenne,  170. 

V.  Thomasville,  97. 

Jersey  City  v.  State,  60. 
Johnson  v.  Americus,  180. 

V.  City,  257. 

V.  Philadelphia,  15,  193,  248, 259, 

260. 
Johnson  v.  Simonton,  149,  218. 
Johnston  v.  Crow,  132. 

V.  Louisville,  15. 

Jones  V.  Ins.  Co.',  1,  28. 

V.  McAlpine,  61. 

V.  Richmond,  213. 

Jonesborough  r.  McRee,  15,  167. 
Joyce  V.  E.  St.  Louis,  248. 
Judson  V.  Reardon,  180. 


Kaliski  v.  Grady,  268. 
Kanouse  v.  Lexington,  156,  209. 
Kansas  City  v.  Clark,  197. 

V.  Corrigan,  241. 

V.  Mublbach,  279. 

V.  White,  60. 


Karst  V.  Railway  Co.,  9,  226. 
Karwisch  v.  Atlanta,  288. 
Kavanaugh  v.  Brooklyn,  8. 
Keasy  v.  Louisville,  15,  188. 
Keeler    v.    Milledge,    170,  173,   174 

209. 
Keely  v.  Atlanta,  287. 
Kellogg  V.  Corrico,  54. 
Kelly  V.  Dwyer,  268. 

V.  Toronto,  217. 

Kelsey  v.  King,  243. 
Kempner  v.  Commonwealth,  210a. 
Kendall  v.  Camden,  36. 
Kennedy  v.  Phelps,  251. 

V.  Sowden,  143. 

Kensington  v.  Glenat,  171. 
Keokuk  v.  Dressell,  22,  158,  202. 

V.  Packet  Co.,  292. 

V.  Scroggs,  15,  19,  21. 

Keokuk,  etc.,  Co.  v.  Quincy,  194. 
Kepner  v.  Commonwealth,  50. 
Kerr  v.  Hitt,  54. 
Ketchum  v.  Buffalo,  15,  217,  233. 
Kettering  v.  Jacksonville,  139,  187, 

279. 
Kiburg,  Ex  parte,  108,  170,  181. 
Kiley  v.  Forsee,  73. 
Kimball  v.  Marshall,  38,  40. 

V.  People,  98. 

Kinder  v.  Gillespie,  249. 
Kinej  v.  Bellringer,  17. 

v.  Carlisle,  237. 

V.  Cross,  237. 

V.  Davenport,  130,  212,  223. 

0.  Jacksonville,  202,  284. 

V.  Williams,  40. 

Kinghorn  v.  Kingston,  185. 

Kinmundy  v.  Mahan,  10,  158. 

Kip  V.  Patterson,  131,  170,  174,  189, 

218. 
Kirby  v.  Market,  235. 
Kirk  V.  Nowill,  159. 
Kirkham  v.  Russell,  15,  17,  129,  189, 

237. 
Kitson  V.  Ann  Arbor,  268. 
Knaust,  In  re,  71. 
Kneedler  v.  Norristown,  169,  222. 
Knief  ».  People,  52. 
Knight  V.  Kansas  City,  49. 

V.  Railroad  Co.,  186. 

Kniper  v.  Louisville,  17,  270. 
Knobloch  v.   Railway  Co.,  130,  184, 

239. 
Knox  City  v.  Thompson,  29. 
Knoxville  v.  Bird,  135,  188,  22a 

V.  King,  143,  196. 

V.  Sanford,  248. 

V.  Vicars,  180. 

Korah  v.  Ottawa,  147,  229. 
Kyle  V.  Malin,  17 


TABLE   OF   CASES. 


XXlll 


L, 


Labrie  v.  Manchester,  220. 
Lackland  v.  Railroad  Co.,  241. 
Lafayette  v.  Cox,  17. 
Lake  v.  Aberdeen,  3,  34,  251. 
Lake  View  v.  Letz,  138,  220,251. 
Lamarque  v.  New  Orleans,  216. 
Lancaster  v.  Richardson,  147,  229. 
Lanfear  u.  Mayor,  163. 
Lanier  v.  Mayor,  287. 
Larney  v.  Cleveland,  170,  203. 
Laiienstein  v.  Fond  du  Lac,  10. 
Launder   v.   Chicago,   189,   200,  213, 

266. 
Launtz  v.  People,  44. 
Lautz  V.  Hightstown,  267. 
Law  V.  People,  55,  71. 
Lawrence  v.  Killam,  227. 
Lawrenceburg  v.  Wuest,  276. 
Leach  v.  Cargill,  15. 
Leathers  v.  Aiken,  85,  292. 
Leavenworth  v.  Booth,  258,  259,  280. 

V.  Norton,  15. 

V.  Rankin,  15. 

LeeTong,  In  re,  122. 

Leland  v.  Commissioners,  148. 

Lenz  V.  Sherrott,  63. 

Leonard  v.  Canton,  15,  17,  256,  275. 

Lesterjelle  v.  Mayor,  179. 

Levy  V.  State,  99. 

Lewis  V.  Toronto,  226. 

Lewiston  v.  Proctor,  170. 

Lexington  v.  Curtis,  182. 

■ V.  Headley,  186. 

Lindsley  v.  Chicago,  117,  185. 

Lineman,  In  re,  220. 

Linneus  v.  Dusky,  108. 

Linton  v.  Carter,  8. 

Lippman  v.  South  Bend,  173. 

Little  Rock  v.  Barton,  213. 

Live  Stock  Asso.  v.  Cresent  City,  132. 

Livingston  v.  Albany,  122. 

■ V.  Pippin,  15,  26,  218. 

V.  Trustees,  257,  280. 

Loeb  V.  Duncan,  204. 

Logan  V.  Pyne,  16,  17,  132,  263. 

■ V.  Tyler,  56. 

Logansport  v.  Crockett,  58,  59. 
Logue  V.  Gillick,  186. 
London  v.  Godn.an,  132. 

V.  Van  acre,  147. 

Long  V.  Brookston,  202. 

V.  Tax  District,  213. 

Longbridge  v.  Huntington,  5.3. 

Lord  V.  Oconto,  11. 

Lios  Angeles  v.  Railroad  Co.,  270. 

V.  Waldron,  188,  210. 

Louis  V.  Cafferata,  288. 
Louisburg  v.  Harris,  151. 
Louisiana  v.  Lathrop,  280. 


Louisville  v.  McKean,  121,  262. 

V.  Osborne,  243. 

V.  Roupe,  137. 

V.  Webster.  223. 

V.  Weible,  132. 

Low  V.  Commissioners,  84. 

V.  Evans,  158. 

V.  Marysville,  8. 

Lowell  V.  Simpson,  231. 

Loze  V.  Mayor,  68. 

Lucas  V.  San  Francisco,  59. 

Lynch  v.  People,  175,  195,  209,  288. 

Lynchburg  v.  Railway  Co.,  241,  258. 


M. 


Mabry  v.  Bullock,  272. 
Macon  v.  Bank,  287. 

V.  Patty,  10,  223. 

Macy  V.  Indianapolis,  9,  226. 
Madden  v.  Smeltz,  47,  205. 
Madison  v.  Hatcher,  99. 
Maguire,  In  re,  84. 
Main  v.  McCarty,  180. 
Mairs  v.  Real  Estate  Asso.,  7. 
Mankato  v.  Fowler,  258. 
Manufacturing  Co.  v.  Schell  City,  70, 

210. 
March  v.  Commonwealth,  102,  207, 

209. 
Marietta  v.  Fearing,  196. 
Marion  v.  Chandler,  277. 
Markham  v.  Atlanta,  9. 

V.  Mayor,  226. 

Markle  v.  Akron,  1,  170,  277. 
Marmet  v.  State,  268. 
Marshaltown  v.  Blum,  137. 
Martel  v-  E.  St.  Louis,  267. 
Martin,  In  re,  131. 

V.  People,  256,  275. 

Martindale  v.  Palmer,  49. 
Martinsville  v.  Frieze,  174. 
Mason  v.  Shawneetown,  1,  147,  148. 
Mather  v.  Ottowa,  15. 
Mathews  v.  Alexandria,  11. 

V.  Kelsey,  231. 

Matter  of  Zborowski,  24. 
Mauch  Chunk  v.  McGee,  71. 
Maxwell  v.  Jonesboro,  265,276. 
Mayberry  v.  Franklin,  164. 
Mayo  V.  James,  121. 
Mayor  v.  Allaire,  92,  198,  213. 

V.  Arnold,  179. 

V.  Beasley,  30,  130. 

V.  Hudson,  213. 

V.  Hussey,  97. 

V.  Hyatt,  112. 

V.  Lumpkin,  67. 

V.  Mayberry,  335. 

V.  Nell,  172a,  182,  190. 


XXIV 


TABLE   OF   CASES. 


Mayor  v.  New  York,  52,  68,  197. 

V.  Nichols,  112. 

V.  Kailroad  Co.,  241,  249,  285. 

V.  Eood,  218. 

V.  Rumsey,  15,  223. 

V.  Second  Ave.  RR.Co.,  241, 248. 

V.  Thome,  131. 

V.  Wards,  202. 

V.  Williams,  28,  213. 

V.  Winfield,  131. 

Mayo r  Ba I  timore  w.  Little  Sisters  of  the 

Poor,  62. 
Mayor  New  York  v.  Heft,  7. 
Mays  V.  Cincinnati,  259,  283. 
McAlister  v.  Clark,  195,  264. 
McArthur  v.  Saginaw,  188. 
McCaflFrey  v.  Smith,  247. 
McCain  v.  State,  224. 
McCarthy  v.  Boston,  229. 
McConvill  V.  Jersey  City,  30,  78,  79, 

151. 
McCormack  v.  Patchin,  9,  226,  227. 
McCormick  v.  Bay  City,  58. 
McCoy  V.  Briant,  35. 

V.  Railroad  Co.,  239, 

McCracken  v.  San  Francisco,  42,  59. 
McCullen  v.  Charleston,  15. 
McDermond  v.  Kennedy,  29. 
McDermott  v.  Board,  1. 

V.  Miller,  45,  60. 

McGear  v.  Woodruff,  1 75. 
McGraw  v.  Whitson,  47. 
Mclntire  v.  Pembroke,  215. 
McKee  v.  McKee,  162. 
McKibbin  v.  Fort  Smith,  213,  223. 
McKnight  v.  Toronto,  255. 
McLaughlin  v.  Stephens,  120. 
McLeod  V.  Kincasdine,  156. 
McLin  V.  Newburn,  29. 
McNair  v.  Ex  parte,  143. 
McNamara  v.  Estes,  227. 
McPherson  v.  Chebanse,  288. 
McRea  v.  Americus,  97,  198. 
Meech  v.  Buffalo,  15. 
Megowan  v.  Commonwealth,  288. 
Melick  V.  Washington,  77. 
Memphis  v.  Adams,  291, 

V.  Battaille,  143. 

V.  O'Connor,  173. 

——'  V.  Waterworks,  26. 

V.  Winfield,  213. 

Merkee  v.  Rochester,  156,  178. 
Merriam  v.  Moody,  15. 

V.  New  Orleans,  193,  273. 

Merz  V.  Railroad  Co.,  213,  239. 
Meyer  v.  Bridgetown,  174,  275. 
Meyers  v.  Railroad  Co.,  141. 
Miles  V.  McDermott,  292. 
Milhau  V.  Sharp,  241, 242,  243,  244. 
Millar  v.  Batch,  252. 
V.  OReilly,  170. 


Miller  v.  State,  213. 

Milliken  v.  Weatherford,  84, 181. 

Mills  V.  Gleason,  15. 

Milne  v.  Davidson,  1. 

Milwaukee  v.  Gross,  219. 

Minden  v.  Silverstein,  199,  277. 

Minneapolis  Gas  Co.  v.  Minneapolis, 

12. 
Minturn  v.  Larue,  15,  121. 
Mitchell  V.  Rockland,  220. 

V.  Wiles,  126. 

Mixer  r.  Supervisors,  169. 
Moberly  v.  Wright,  148. 
Mobile  V.  Jones,  170, 192. 

V.  Moog,  16,292. 

V.  Rouse,  92. 

V.  Yuille,   130,    132,  147,   151, 

259. 
Monroe  v.  Gerspach,  253. 

V.  Hoffman,  22,  223. 

V.  Meuer,  169. 

Montgomery  v.  Belser,  204. 

V.  Poster,  203. 

V.  Plank  Road  Co.,  15. 

Mooney  v.  Keunett,  184. 
Moore,  Ex  parte,  156. 

V.  Mayor,  36,  62. 

V.  People,  120. 

Moran  v.  Lin  dell,  75,  228. 

V.  New  Orleans,  85. 

Morano  v.  Mayor,  217. 
Morehouse  v.  Norwalk,  188. 
Morey  v.  Brown,  274. 
Morgan  v.  Cincinnati,  220. 

V.  Nolte,  209. 

V.  Quackenbosh,  36. 

Morley  v.  Carpenter,  227.  . 
Morrill  v.  State,  272,  280. 
Morrison  v.  Hinkson,  243. 
Morton  v.  Princeton,  195. 
Moses  V.  Railroad  Co.,  238 
Moss  V.  Oakland,  56,  209. 
Mott  V.  New  York,  24. 
Moundsville  v.  Fountain,  181. 
Mount,  Ex  parte,  266. 
Mowery  v.  Salisbury,  274. 
Mt.  Carmel  v.  Wabash,  8,  256. 
Mt.  Keokuk  v.  Dressell,  31. 
Mt.  Pleasant  v.  Beckwith,  15. 

V.  Breeze,  31. 

V.  Vansice,  138. 

Muhlenbrinck  v.  Commissioners,  288. 
Municipality  v.  Dunn,  227. 

V.  Kirk,  231. 

V.  Peafee,  188. 

Munn  V.  Illinois,  248. 
Murphy  v.  Jacksonville,  96. 

V.  Montgomery,  292. 

V.  Pance,  284. 

V.  Pearce,  224. 

Muscatine  v.  Packet  Co.,  292. 


TABLE   OF   CASES. 


xxy 


Musgrave  v.  Church,  255. 
Meyers  v.  Railroad  Co.,  239. 


Nagle  V.  Augusta,  229, 
Napman  v.  People,  131, 173,  185. 
Nashville  v.  Althrop,  135,  137.  287. 

V  Toney,  210. 

Nasmith,  In  re,  130,  160. 
Naylor  v.  Galesburg,  197. 
Nealis  v.  Haywood,  78. 
Neilly,  In  re,  260. 

V.  Owen  Sound,  130. 

Nelson  v.  La  Porte,  225,  244. 
Nevada  v.  Hutchins,  251. 
Newark  v.  Murphy,  180. 
New  Hampton  v.  Conroy  19,  159. 
New  Haven  v.  Sargent,  15,  226. 

V.  Water  Co.,  243. 

New  London  v.  Brainard,  15. 
New  Orleans  v.  Anderson,  193. 

V.  Blanc,  213. 

V.  Brooks,  38'. 

V.  Boudro,  209. 

V.  Clark,  225,  244. 

V.  Costello,  213. 

V.  Dubarry,  268,  287. 

' V.  Ins.  Co.,  15. 

V.  Kaufman,  268,  287. 

V.  Miller,  103. 

V.  Phillip!,  18,  89. 

V.  Savings  Bank,  121,  287. 

■ V.  Wilmot,  144. 

Newton  v.  Aurora,  187. 

V.  Belger,  223. 

New  York  v.  Buffalo,  290. 

V.  Hyatt,  62. 

— —V.  Nichols,  121. 

■ V.  Ordroneaux,  152. 

' V.  Ryan,  124. 

Nichols  V.  Nashville,  17. 
Nier  v.  Railway  Co.,  127, 
Nightingale,  Petitioner,  130,  218, 
Nolinv.  Franklin,  254. 
Northern  Liberties  v.  O'Neill,  209. 
Norton  v.  Kearnon,  148. 
Noyes  V.  Ward,  195. 


O. 


Oakland  v.  Carpenter,  10,  15,  37. 
O'Connor  v.  Pittsburgh,  226. 
Ogdensburgh  v.  Lyon,  81,  142. 
O'Leary -y.  Sloo,  227,228. 
Olin  V.  Meyers,  58. 
Olinda  v.  Lothrop,  234. 
O  Maley  v.  Freeport,  28. 
O'Mally  V.  McGinn,  49. 


Opelousa  v.  Andrus,  49. 

Ordinary  v.  Retailers,  256 

Osborne  v.  Mobile,  271. 

Oskaloosa  v.  TuUis,  19. 

Oskosh  V.  Schwarz,  170, 174. 

Oswego  V.  Collins,  248. 

Ottawa  V.  Carey,  15. 

Ottoman  Cahvey  Co.  v.  Philadelphia, 

195. 
Ottumwa  V.  Schaub,  185,  267. 
Ouachita  v.  Monroe,  15. 
Ould  V.  Richmond,  268. 


Pacific  V.  Siefert,  193, 
Pacific  Junction  v.  Dyer,  137 
Packet  Co.  v.  Catlettsburg,  85,  292. 

V.  Keokuk,  85,  292. 

V.  St.  Louis,  85. 

Palmer  v  .Hicks,  142. 

V.  Way,  213. 

Palmyra  v.  Morton,  196,  213. 
Parr  v.  Greenbush,  56. 
Parsons  v.  Trustees,  186. 
Paterson  v.  Barnet,  70,  210. 
Paton  V.  People,  265. 
Patton  V.  Stephens,  290. 
Paul  V.  Detroit,  224. 
Paxson  V.  Sweet,  28,  235. 
Peay  v.  Little  Rock,  273. 
Peck  V.  Austin,  7. 
Pedrick  v.  Bailey,  130,  149,  234. 
Pekin  v.  Smelzel,  98,  275. 
Pendergast  v.  Peru,  185,  202,  279. 
Penn.  Co.  v.  Frana,  193. 

■ V.  James,  130,  145. 

Penn.  Ry.  Co.  v.  Jersey  City,  139. 
People  V.  Batchelor,  38. 

V.  Benson,  244. 

V.  Bird,  36. 

V.  Board  of  Health,  253. 

V.  Brooklyn,  227. 

V.  Brown,  119,  213. 

V.  Buchanan,  185. 

V.  Carpenter,  234. 

V.  Cooper,  9. 

V.  Council,  164. 

V.  Cox,  170a. 

V.  Crotty,  3,  210a,  269. 

V.  Cunningham,  231,  237. 

V.  Detroit,  170. 

V.  Dorr,  13. 

V.  Plagg,  225. 

V.  Johnson,  170. 

V.  Justices,  173,  174. 

V.  Leavitt,  204. 

V.  Lee,  72. 

V.  Marx,  130. 

V.  Mayor,  174,  184. 


XXVI 


TABLE   OF   CASES. 


V.  McClintock,  223. 

V.  Miller,  178,  188,  213. 

V.  Mitchell,  16. 

V.  Moore,  280. 

V.  Morris,  8. 

V.  Mulholland,  130,  218,  260. 

V.  Murray,  72,  186. 

V.  New  York,  263. 

V.  Potter,  184. 

V.  Railroad  Oo.,  67,  202. 

V.  Rochester,  46. 

- —  V.  Russell,  260,  272. 

V.  Sacramento,  154. 

V.  San  Francisco,  55. 

V.  Schroeder,  50. 

V.  Starne,  57. 

V.  Stevens,  112. 

V.  Sturtevant,  6. 

V.  Thurber,  85,  292. 

V.  Wharf  Co.,  292. 

V.  Whitney's  Point,  170a. 

Peoria  v.  Calhoun,  188,  189. 
Pequignet  v.  Detroit,  228. 
Perchee  v.  Ellis,  130. 
Perry  v.  Railroad  Co.,  146,  237. 
Pesterfield  v.  Mayor,  131. 
Peters  v.  London,  151. 
Petersburg  v.  Metzger,  15,  98. 
Peterson  v.  New  York,  15,  217. 
Pettis  V.  Johnson,  34,  334. 
Philadelphia  v.  Arrott,  195. 

V.  Board,  234. 

V.  Hughes,  195. 

V.  Roney,  209. 

Phillips  V.  Allen,  159,  160. 

Phillips,  In  re,  227. 

Pierce  v.  Bartrum,  134,  143,  219. 

Pieri  v.  Mayor,  131. 

Pimental  v.  San  Francisco,  42,  59. 

Piqua  V.  Zimmerlin,  30,  139,  213. 

Plaquemine  v.  Roth,  18,  19. 

V.  RuflF,  155. 

Platteville  v.  Bell,  276. 
Player  v.  Vere,  133. 
Plum  V.  Canal  Co.,  226. 
Plymouth  v.  Pettijohn,  143. 
Poe  V.  Machine  Works,  204. 
Poillon  V.  Brooklyn,  15. 
Polland  V.  Connelly,  77. 
Polinsky  v.  People,  112,  130,  218. 
Pomeroy  r.  Lapens,  174. 
Pool  V.  Boston,  290. 
Porter  v.  War  in  e,  184. 
Port  Huron  v.  McCall,  17. 
Powell  V.  People,  209. 

, V.  St.  Joseph,  227. 

Powers  V.  Decatur,  168,  268. 
Poyer  v.  Des  Plaines,  206,  255. 
Prell  V.  McDonald,  172,  179, 185. 
Prescott  V.  Battersby,  8a. 
— —  V.  Duqucsne,  292.  ^ 


President  v.  Holland,  170. 
Preston  v.  Manvers,  48. 
Providence  v.  Railroad  Co.,  68. 
Provision  Co.  v.  Chicago,  248. 
Pugh  V.  Little  Rock,  185. 
Purdue  v.  Ellis,  260. 
Pye  V.  Peterson,  222,  252. 


Q. 


Queen  v.  Davis,  237. 

V.  Gilbert,  155,  156. 

V.  Justices,  54,  167. 

V.  Milledge,  167. 

Quigley  v.  Aurora,  170. 
Quincy  v.  Ballaner,  170. 

V.  Bull,  07,  139,  195,242,  243. 

V.  Railroad  Co.,  210. 

Quinn  v.  Heisel,  180. 

V.  Paterson,  146,  224. 

Quinette  v.  St.  Louis,  193. 
Quong  Woo,  In  re,  11. 


R. 

Railroad  v.  Belleville,  240. 

V.  Bloomington,  239. 

V.  Brooklyn,  189,  241. 

V.  Brown,  238. 

V.  Buffalo,  239. 

V.  Burlington,  67. 

V.  Cape  May,  67. 

V.  Chenoa,  147,  151,  239. 

V.  Deacon,  79. 

V.  Decatur,  239. 

V.  East  Orange,  130. 

V.  Ellerman,  292. 

V.  Engle,  186. 

V.  Ervine,  7. 

V.  Evansvilie,  24. 

V.  Galena,  239. 

V.  Garside,  238. 

V.  Godfrey,  174. 

V.  Haggerty,  239. 

V.  Jersey  City,  139,  239. 

V.  Joliet,  195^ 

V.  Klauber,  174. 

V.  Lake  View,  241. 

V.  Louisville,  147. 

V.  Long  Branch,  224. 

V.  Mt.  Pleasant,  227. 

V.  Newark,  238. 

V.  New  Orleans,  8. 

V.  Odum,  56. 

V.  People,  201,  239 

V.  Petersborough,  10. 

V.  Philadelphia,  248. 

V.  Quincy,  8. 

V.  Railroad  Co.,  238,  240. 


TABLE    OF    CASES. 


XXVll 


Railroad  ».  Richmond,  135,  241. 

V  Shields,  238. 

V.  Shires,  186. 

V.  Smith,  240. 

V.  Spearman,  228. 

V.  Springfield,  188. 

V  St.  I.oui?,  '292. 

V.  Transit  Co.,  240. 

Eailway  Co.  v.  Baltimore,  12. 

V.  Cambridije,  235. 

V.  Covington,  238. 

V.  Faribault,  224. 

V.  Hoboken,  213,  256,  258. 

V.  Jacksonville,  131,  226,  289. 

V.  Jonesville,  241. 

V.  Lake  View,  262. 

V.  Louisville,  238,  241.  242,  265. 

•■!;.  Philadelphia,    213,    241,248, 

250. 

V.  Kail  way  Co.,  67. 

Kaker  v.  Maquon,  187. 
Eaieigh  v.  Dt<ugherty,  116,  220. 
Randall  v.  Van  Vechten,  225. 
Randolph,  In  re,  85. 
Rau  V.  Little  Kock,  139. 
Ravenna  v.  Penn.  Co.,  239. 
Redden  v.  Coyinijton,  199. 
Reed,  Ex  parte,  203. 
Regina  v.  Coulter,  271. 

V.  Cuthbert,  271. 

V.  Howard,  223. 

V.  Johnston,  203,  223. 

V.  Osier,  143. 

V.  Pipe,  137,  191. 

V.  Stafford,'  267. 

Reich  V.  State,  97. 
Reinboth  v.  Pittsburgh,  15. 
Rendering  Co.  v.  Behr,  220. 
Rensselaer  v.  Leopold,  188. 
Respublica  v.  Duquet,  147. 
Rex  V.  Ashwell,  60a. 

V.  Cutbush,  125. 

V.  Harrison,  73. 

V.  Jones,  237. 

V.  Moore,  237. 

V.  Ward,  232. 

Reynolds  v  Cincinnati,  188. 

V.  Schweinefus,  24. 

Rice  «.  Kansas,  101. 
Rich  V.  Chicago,  58 
Richardson  v.  Heydenfeldt,  10. 
RidgwayiJ   West.  4,  160. 
Robbing  v.  New  Brunswick,  228. 

V.  People,  98. 

V.Shelby  Co.,  137. 

Roberson  v.  Lamberiville,  173,175 
Roberts  v.  Easton,  16. 

V,  Ogle,  137,  249,254. 

Robertson  v.  Groves,  15,  17. 

V.  Railroad  Co.,  239 

Robinson  v.  Tranklin,  121. 


Rockester  v.  Close,  133. 

V.  Collins,  29,  32. 

V.  Pettinger,  218. 

V.  Upman,  134,  174,  278. 

Rogers  V.  Jones,  112,  139. 
Rome  V.  Cabot,  15,  218. 
Rosebaugh  v.  Saffin,  152,  162,  249. 
Ross  V.  York,  288. 
Rost  V.  Mayor,  163. 
Rothschild'v.  Darien,  97. 
Rudolph,  In  re,  271. 
Ruggles  V.  Nantucket,  12. 
Rulson  V.  Post,  131. 
Runyon  v.  Bordine,  234. 
Russellville  v.  White,  30. 
Ryan  v.  Jacob,  160. 


S. 


Sacramento  v.  Crocker,  268,  270. 

V.  Stage  Co.,  270. 

Safe  Co.  V.  Mayor,  206. 

Saainaw  Gas  Co.  v.  Saginaw,  132. 

Salem  v.  Maynes,  223. 

Salt  Lake  City  v.  Wagner,  135,   141. 

Sanders  v.  Butler,  256. 

V.  Elberton,  277. 

San  Francisco  v.  Canavan,  8. 

V.  Hazen,  42. 

Santa  Barbara  v.  Sherman,  170. 
Sargent  TJ.  Railway  Co.,  127,  188. 
Satterlee  v.  San  Francisco,  42. 
Sauk  V.  Philadelphia,  46. 
Saunders  v.  Lawreiace,  39. 

V.  Russell,  270. 

Savannah  v.  Charleston,  121. 

V.  Feely,  270. 

V.  Hines,  287. 

V.  Wilson,  233. 

Saxton  V.  Beach,  34. 

V.  St.  Joseph,  34. 

Scammon  v.  Chicago,  234. 
Schenly  v.  Commonwealth,  59,  227. 
Schmidt,  Ex  parte,  270. 
Schneider,  In  re,  30.  265. 
Schott  V.  People,  185,  188. 
Schroder  v.  Charleston,  116. 
Schultz  V.  Cambridge,  193,  194. 
Schuster  v.  State,  31. 
Schwab  V.  Madison,  206. 
Schwartz  v.  0.<hkosh,  52,  57,  64. 
Schweitzer  v.  Liberty,  52. 
Schwuchow  V.  Chieajjo,  30,  150,  213^ 

265,  267,  275,  277. 
Scott  V.  Shreveport,  15. 
Sears  v.  Commissioners,  85,  271. 
Seebald  v.  People,  98. 
Selectmen  v.  Murray,  131. 
Selma  v.  Stewart.  203,  209. 
Sewell  V.  St.  Paul,  283. 


XXVllJ 


TABLE   OF   CASES. 


Shaffer  v.  Mumma,  i04. 
Shallcross  v.  Jeffersonville,  30. 
Shaw  V.  Kennedy.  162,  163. 

V.  Pope,  13.' 

V.  Poynter,  175. 

Sheehan  v.  Gleason,  11. 
Sheffield  t;.  O'Day,  155,  157. 
Shelby  v.  Randies,  274. 
Shelton  v.  Mobile,  139,  264. 
Shepherd  v.  Hees,  144,  249. 
Shillito  V.  Thompson,  254. 
Shrader,  Ex  parte,  254. 
Shreveport  v.  Levy,  131,  136,  288. 

V.  Roos,  78,  147. 

Siebenhauer,  Ex  parte,  121,  135. 
Siloam  Springs  v.  Thompson,  89. 
Simpson  v.  Savage,  121. 
Sisto  Li  Protti,  Ex  parte,  268. 
Slatten  v.  Railroad  Co.,  238. 
Slattery,  Ex  parte,  28. 
Slaughter  v.  Commonwealth,  280. 
Slaughter  House  Laws,  130. 
Slessman  v.  Crozier,  159,  161. 
Smith  V.  Adrian,  184,  279.  • 

V.  Buffalo,  35. 

V.  Elizabeth,  209. 

V.  Emporia,  32,  71. 

V.  Gas  Co.,  244. 

V.  Knoxville,  125,  276. 

V.  Madison,  15,  17,  31,  195,  256. 

V.  Mayor,  130. 

V.  Morse,  10,  15. 

V.  Newburn,  15,  217. 

V.  Rome,  226. 

V.  Sacramento,  291. 

V.  Toronto,  193. 

V.  Washington,  226. 

Smith,  Ex  parte,  188. 

Smith,  In  re,  24,  52. 

Snell  V.  Belleyille,  143,  217. 

Snyder  v,  North  Lawrence,  20,  194. 

Society  v.  Diers,  273. 

Solomon  v.  Hughes,  58,  186,  207. 

Soon  Hing  v.  Crowley,  130. 

Southport  V.  Ogden,  94. 

Sower  V.  Philadelphia,  70,  210a. 

Spangler  v.  Jacoby,  58. 

Sparks  v.  Stokes,  173,  278. 

Spaulding  v.  Lowell,  19,  217. 

Specht  V.  Commonwealth,  288. 

Spengler  v.  Trowbridge,  292. 

Spitler  V.  Young,  143,  199. 

Staates  B.Washington,  88,  47, 163, 160, 

166,  276. 
Starr  v.  Burlington,  1. 
State  V.  Addington,  130. 
—  V.  Albright,  6. 

V.  Ames,  288. 

t'.  Atkinson,  232. 

V.  Atlanta,  15. 


State  V.  Atlantic  City,  227. 

V   Barbour,  46. 

V.  IJayonne,  210a. 

V.  Bean,  213,283. 

V.  Beattie,  30. 

V.  Bell,  11,35. 

V.  Bergman,  114. 

V.  Bennett,  265. 

V.  Bill,  204. 

V.  Binder,  108. 

V.  Blauvelt,  204. 

V.  Blaser,  137. 

V.  Brittain,  110. 

a.  Briickhauser,  28,  107. 

V.  Cainan,  139,  151. 

V.  Caldwell,  103. 

V.  Cantieny,  71, 148, 154, 156,  ISa 

V.  Canton,  213. 

V.  Carr,  61. 

V.  Chapman,  43,  46. 

V.  Chase,  103. 

V.  Cincinnati  Gas  Co.,  132,  244. 

V.  Clarke,  108,  111,  139,  188. 

t;.  Coke  Co.,  240. 

V.  Columbia,  268. 

V.  Cowan,  108. 

V.  Crenshaw,  151. 

— ^ —  V.  Crummey,  107. 

V.  Douglass,  111. 

V.  Edens,  174. 

V.  Elizabeth,  226,  227. 

V.  Farr,  41,  43. 

V.  Fay,  19. 

V.  Ferguson,  20. 

V.  Fisher,  132. 

V.  Foley,  130,  237. 

V.  Freeman,  27,  130. 

V.  Gening,  279. 

V.  Gisch,  217. 

V.  Gordon,  100. 

V.  Grafmuller,  172a. 

V.  Green,  43. 

V.  Green  Co.,  16. 

V.  Hardy,  53. 

V.  Hauser,  10. 

V.  Herdt,  154,  165. 

V.  Herod,  141,  157,  265. 

V.  Hoboken,  30,  52,  139,  266. 

V.  Hudson,  74. 

V.  Ironton  Gas  Co.,  188. 

V.  Jersey  City,  6,  II,  47,  49,  130, 

145,  204,  210a,  227,  230,  239,  242, 

251,  252. 
State  V.  Johnson,  28. 

V.  Kantler,  10,  37,  64,  70. 

V.  Keith,  110. 

V.  King,  172a,  186. 

V.  Kirkiey,  193. 

r.  Langston,  110. 

V.  Lathrop,  287. 


TABLE  OF  CASES. 


XXIX 


State  V.  Laverack,  237.  "^ 
V.  Lee,  107. 

V.  Ludwig,  107. 

V.  Lufferty,  180. 

V  McDonbugh,  28. 

V.  McNish,  195. 

V.  Merritt,  J  74. 

V.  Mills,  111. 

V.  Mobile,  15,  217,  224,  233,  237. 

V.  Morristown,  15,  224. 

V.  Mott,  188,  252,  255. 

V.  Newark,  35.  47. 

, V.  New  Brunswick,  12,  146,  224. 

V.  New  York,  15. 

V.  Oleson,  107. 

V.  Patamia,  284. 

V.  Patterson,  6,  11,  40,  200. 

V.  Plunkett,  111 

V  Pollard,  115. 

V.  Railroad    Co.,   193,   237,   238, 

241. 
State  V,  Richards,  174. 

V.  Shelby  117. 

V.  Simp,  28. 

V.  Sly,  114. 

V.  Smith,  17,  270,  283. 

V.  Stearns,  170. 

V.  Swift,  15. 

V.  Taylor,  231. 

V.  Trenton,  11,  12,  240. 

V   Tryon,  1. 

V.  Union,  67. 

V.  Vail,  58. 

V.  Welch,  130,  198,  276,  288. 

V.  West  Orange,  226. 

V  Williams,  1,  28,  116. 

V.  Woodward,  232,  237. 

V  Young,  101. 

».  Zeigler,  77,  15 J,  168. 

State  Center  v.  Barenstein,  11, 21, 130, 

167,  188,  263. 
St.  Charles  v.  Nolle,  137,  143. 

V.  O'Mailey,  185,  202. 

Steckert  v.  East  Saginaw,  58,  228. 
Stetson  V.  Faxon,  237. 

V.  Kempton,  290. 

Stevens  v.  Commonwealth,  173. 
Stevenson  v.  Bay  City,  49,  56. 
Stewart  v.  Clinton,  186. 

V.  Commonwealth,  223. 

St.   John   V.    New  York,    188,    217, 

231. 
St.  Louis  V.  Bank,  264. 

V.  Bentz,  108,  130,  213. 

V.  Boffinger,  2,  85,  188. 

V.  Buckner,  11. 

V.  Caff'erata,  108,  130,  218. 

V  Clemens,  10,  11. 

V  Fitch,  131. 

V.  Fitz,  84,  173. 

■ V.  Foster,  1,  58,  186. 


St.  Louis  V.  Frein,  173. 

V.  Green,  71,  130,  264,  285,  286^ 

287. 
St.  Louis  V.  Herthel,  195. 

V.  Jackson,  217. 

V.  Kase,  125. 

V.  Knox,  130,  173,  182,  188. 

V.  Laughlin,  20,  264,  270. 

V.  Life  Asso.,  264. 

V.  Oeters,  1 1 . 

V.  Railway  Co.,  139. 

V.  Siegrist,  277. 

V.  Spiegel,  268. 

V.  Stern,  254. 

V.  Sternberg,  264,  279,  287. 

V.  Tiefel,  71. 

V.  Trust  Co.,  283. 

V.  Transportation  Co.,  287. 

V.  Vert,  27,  170. 

V.  Weber,  125,  130,  189,  217. 

V.  Wehrung,  11. 

V.  Withaus,  38. 

V.  Woodruff,  248. 

Ry.  Co.  V.  St.  Louis,  130,  134,  241. 
St.  Martinsville  v.  Mary  Lewis,  144^ 

292. 
Stokes  V.  New  York,  134,  209. 

V.  Prescott,  272. 

Stondinger  v.  Newark,  342. 
St.  Paul  V.  Colter,  130,  188. 

V.  Laidler,  133. 

V.  Smith,  130,  145,  219. 

V.  Traeger,  20,  131,  245. 

V.  Troyer,  277. 

Strahl,  Ex  parte,  15. 

Strauss  v.  Pontiac,  4, 16, 142,  275,  277^ 

Strike  V.  Collins,  124,  217. 

Striker  v.  Kelly,  58. 

Stroud  V.  Philadelphia,  242, 

St.  Rochs  Sud  V.  Dion,  137. 

Stryker  v.  New  York,  142. 

Stuhr  V.  Hoboken,  52. 

Sugar  Co.  v.  Jersey  City,  224. 

Sumner  v.  Philadelphia,  220. 

Sumpter  v.  Descbampes,  21. 

Supervisors  v.  People,  57. 

Sutton  V.  McConnell,  170. 

Swarth  v.  People,  13,  121,  261. 

Sweet  V.  Wabash,  30,  189,  286. 

Sykes  v.  Columbus,  15. 


T. 

Tain  tor  v.  Morristown,  229. 
Tallant  v.  Burlington,  24. 
Tappan  v.  Young,  10. 
Taylor  v.  Americus,  190,  204,  209. 

V.  Carondolet,  1. 

V.  Palmer,  53. 

V.  Pine  Bluffs,  206,  218. 


XXX 


TABLE   OF   CASES. 


Taylor  v.  Railway  Co.,  235. 

Taylor,  Ex  parte,  271. 

Taxing  District  v.  Emerson,  273. 

Taxtor  v.  Railroad  Co.,  239. 

TefttJ.  Size,  187. 

Telegraph  Co.  v.  Chicago,  244a. 

V.  Richmond,  268. 

Telephone  Co.  v.  Oshkosh,  18. 
Temple  v.  Sumner,  272. 
Terre  Haute  v.  Lake,  84,  61. 

V.  Twiner,  2.55. 

Terry  v.  Haldinand,  263. 
Thomas  v.  Ashland,  169. 

V.  Hot  Springs,  20. 

V.  Mt.  Vernon,  30,  167,  275. 

Thompson  v.  Boonville,  10. 

V.  Schermerhorn,  10,  11. 

Thorpe  v.  Brumfitt,  237. 

Three  Rivers  v.  Mayor,  287. 

Tipton   V.   Norman,  22,  70,  147, 185, 

210. 
Tisdale  v.  Minonk,  54,  166,  209. 
Toledo  V.  Edens,  141. 
Torbert  v.  Lynch,  156. 
Torrent  v.  Muskegon,  15,  289. 
Touchard  v.  Touchard,  8. 
Towns  V.  Tallahassee,  160,  188,  267. 
Tracy  v.  People,  58. 
Traphagen  v.  Jersey  City,  242. 
Trask,  Ex  parte,  155,  156. 
Treadway  v.  Schnauber,  15. 
Trigally  v.  Memphis,  6. 
Triggs  V.  Lester,  245. 
Trimble  v.  JBucyrus,  213. 
Truchelot  v.  City  Council,  138. 
Truesdale  v.  Moultrieville,  173. 

V.  Rochester,  51. 

Trustees  v.  People,  131. 

V.  Roome,  270. 

V.  Schroeder,  203. 

Trustees,  In  re,  12. 
Trowbridge  v.  Newark,  17,  139. 
Tuck  V.  "Waldron,  20,  275. 
Tucker  v.  Virginia  City,  15. 
Tugman  v.  Chicago,  132. 
Tattle  V.  State,  223. 


U. 

Udell «.  BrooRlyn,  142. 
Underwood  v.  Carney,  234. 

V  Green,  220. 

Upington  v.  Oviatt,  47,  56. 
Urquhart  v.  Ogdensburg,  201. 
United  States  v.  Hart,  86. 
V.  Holly,  120. 


V. 

Van  Baalen  v.  People,  188,  260. 


Vance  v.  Little  Rock.  283. 
Vanderwater  v.  New  York,  144. 
Vandine,    Petitioner,   130,    143,   220, 

264. 
Vandyke  v.  Cincinnati,  7,  174. 
Van  Hook  v.  Selma,  1,  88,  258,  259. 
Van  Horn  v.  People,  274. 
Van  Sant  v.  Stage  Co.,  268,  283. 
Van  Sicklenv.  Burlington,  223. 
Varden  v.  Mount,  159,  161,  163,  249. 
VarsV  Railway  Co..  237. 
Vason  V.  Augusta,  97,  253. 
Vicksburg  v.  Tobin,  85. 
Vidal  V.  Girard,  29. 
Vionet  v.  First  Municipality,  218. 
Vogel  V.  Granz,  213. 
Vosse  V.  Memphis,  268. 


W. 

Waco  V.  Powell,  249,  254. 
Wade  V.  Newburn,  217. 
Wadleigh  v.  Giliran,  213,  223. 
Waite  V.  Garston,  220. 
Waldo  V.  Wallace,  99. 
Waldraven  v.  Memphis,  60. 
Walker  v.  Evansville,  210a. 

V.  Springfield,  257,  265. 

Wallace  v.  New  York,  224. 
Walsh  V.  Railroad  Co.,  145. 

V.  Union,  195. 

Wan  Yin,  In  re,  30,  259. 
Ward  V.  Greenville,  131,  276. 

V.  Little  Rock,  252. 

Waring  v.  Mobile,  62. 
Warren  v.  Henly,  227,  228. 

V.  Mayor,  139. 

Wartman  v.  Philadelphia,  217. 
Wasem  v.  Cincinnati,  55. 
Washington  v.  Frank,  174,  188. 

V.  Hammond,  110. 

V.  Meigs,  84,  274. 

V.  Nashville,  164. 

V.  State,  273,  280. 

Waterbury  v.  Laredo,  15. 

V.  Martin,  67. 

Water  Commissioners  v.  Dwight,  71. 
Waters  v.  Leech,  15,  131. 
Water  Works  v.  T^artlett,  6,  84. 
Watson  V.  Chicago,  74. 

V.  Passaic,  227. 

V.  Turnbull,  188. 

Watts  V.  Scott,  174. 
Waupum  V.  Moore,  206. 
Wavne  Co.  v.  Detroit,  106,  169. 
Webster  v.  Harwinton,  16. 

V.  Lansing,  207. 

Weeks  v.  Foreman,  168. 
Weil  V.  Ricord,  252,  263. 
Weitzel  v.  Concordia,  170. 
Welch  V.  Hotchkiss,  130,  223,  267. 


TABLE   OF   CASES. 


XXXI 


"Welker  v.  Potter,  35, 
Wells  V.  Atlanta,  15,  26. 
Welsh  V.  Kail  road  Co.,  249. 
Welton  V.  Missouri,  137. 
Wendover  v.  Lexington,  265. 
Wertheimer  v.  Boonville,  209. 
West  V.  Bancroft,  243.  • 

V  Columbus,  174. 

V.  Greenville,  121. 

V.  Mayor,  206. 

Westgate  v.  Carr,  98. 
Wetmore  v.  Story,  39. 
Wetumpka  v.  Wharf  Co.,  6. 
Wharf  Co.  v.  Portland,  231. 
Wheatley  v.  Covington,  17. 
Wheel  Co.  v.  Burnham,  42. 
Wheeling  v.  Black,  184. 
White  V.  Charleston,  12. 
■-  V.  Godfrey,  229. 

V.  Hawenh,  162. 

V.  Kent,  127,  180,  188,  237. 

V.  McKeesport,  15. 

V.  Tallman,  159,  160,  249. 

Whitehall  v.  Meux,  171. 
Whitfield  V.  Longest,  249,  254. 
Whitloek  V.  Wilton,  193. 
Whitson  V.  Franklin,   145,  174,  199, 

237,  239. 
Whitten  v.  Covington,  11. 
Wiggins  V  Chicago,  1 66,  169, 202, 267. 
Wightman  v.  State,  113. 
Wilcox  V.  Hemming,  139, 161, 162, 213. 
Wilder  v.  Savannah,  270,  287. 
Wiley  V.  Owens,  260. 
Wilkinson  v.  Charleston,  143. 
WillardiJ.  Killingsworth,  17,  185. 
Williams  v.  Augusta,  29,  130,  170. 

V.  Davidson,  1,  17,  84,  131,  213. 

V.  Detroit,  226,  227. 

V.  Warsaw,  99. 

V.  West  Point,  82. 

Williamson  v.  Commonwealth,  15. 
Williamsport  v.  Commonwealth,  15. 
Willis  V.  Legris,  163. 
Wilmington  v.  Koby,  143,  272. 


Wilson,  In  re,  8,  10,  30,  204. 
Winants  v.  Bayonne,  11,  19. 
Winona  v.  Burke,  174,  184. 
Winooski  v.  Gokey,  147, 174, 176, 184. 
Winpenny  v.  Philadelphia,  292. 
Wistar  v.  Philadelphia,  227. 
Wittier  V.  Cavender,  24. 
Wolf,  Ex  parte,  38,  63,  276. 
Wolfe  V.  Railroad  Co.,  237. 
Wood  V.  Brooklyn,  112,  170,  180,28a 

V.  Mears,  231. 

Woodbridge  v.  Detroit,  235. 
Woodruff  t?.  Stewart,  51,  165,228. 
Woodward  v.  Turn  bull,  98. 
Worden  v.  H^  ew  Bedford,  289. 
Workman,  In  re,  242. 
Works  V.  Lockport,  74. 
Worsley  v.  New  Orleans,  35. 
Worthington  v.  Scribner,  213. 
Wraggi?.  Penn.  Tp.,  98. 
Wreford  v.  People,  131,  219,  262. 
Wright  V.  Atlanta,  284. 

V.  Forrestal,  54,  58. 

V.  Railroad  Co.,  1,  7,  195. 

Wright,  In  re,  205,  247. 
Wyandotte  v.  Corrigan,  241. 
Wythe  V,  Nashville,  10. 


Yates  V.  Milwaukee,  218,  292. 
Yick  Woo  V.  Hopkins,  136. 
Yick  Woo,  In  re,  84,  130,  193. 
York  V.  Forscht,  290. 
Young  V.  St  Louis,  73. 


Zanone  v.  Mound  City,  136,  201,  268. 
Zborowski,  Matter  of,  24 
Zorger  v.  Greenbush,  193,  195. 
Zottman  v.  San  Francisco,  15. 
Zylstra  v.  Charleston,  16. 


MUNICIPAL  POLICE  ORDINANCES. 


CHAPTER  I. 

NATUKE  OF  OEDINAITCES. 

§  1.  Definition  of  an  ordinance. 

§  2.  Ordinances  are  laws. 

§  3.  Necessity  of  formal  passage. 

§  4.  Charter  prohibition  need  not  be  supplemented  by  an  ordinance. 

§  5.  Must  be  passed  by  the. governing  body. 

§  6.  Must  regulate  corporate  affairs. 

§  7.  Must  not  regulate  civil  liabilities. 

§  1.  Definition. — Municipal  ordinances  are  laws  passed 
by  the  governing  body  of  a  municipal  corporation  for  the 
regulation  of  the  affairs  of  the  corporation. 

The  term  ordinance  is  now  the  usual  denomination  of 
such  acts,  although  in  England  and  in  some  of  the  states 
the  technically  more  correct  term  by-law  or  bye-law  is  in 
common  and  approved  use.  The  main  feature  of  such  enact- 
ments is  their  local  as  distinguished  from  the  general 
applicability  of  the  state  laws ;  hence  the  word  laWy  with 
the  prefix  by  or  byCy  should  in  strictness  be  preferred  to  the 
word  ordinance. 

§  2.  Ordinances  are  laws. — Ordinances  are  not  merely 
rules  or  regulations  in  the  ordinary  sense  of  those  terms, 
but,  as  the  derivation  of  the  word  would  indicate,  they 
are  in  the  nature  of  laws,  being  decreed  by  a  body  vested 
with  definite  legislative  authority,  coupled  with  power  to 
enforce  obedience  to  its  enactments.  That  legislative  power 
shall  not  be  delegated  is  a  fundamental  principle  of  our 

(1) 


2  MUNICIPAL    POLICE    ORDINANCES.  [§  2. 

constitutions ;  and  the  prohibition  is  strictly  observed  in 
all  things  that  affect  the  body  of  the  state.  But  in  every 
thickly-settled  locality  there  is  a  necessity  for  more  detailed 
regulation  of  human  affairs  than  the  general  legislature 
could  practicably  provide,  the  necessity  varying  with  the 
physical  surroundings,  the  character  of  the  people,  the 
nature  of  their  employment,  and  the  density  of  population. 
As  Roberts,  C.  J.,  says  in  a  recent  case  in  Texas :  * 

"  So  far  as  it  relates  to  the  execution  of  the  general  laws 
of  the  land,  there  is  no  more  neftessity  for  an  incorporation 
in  a  city  than  in  the  country.  E"or  does  the  incorporation 
exclude  within  its  boundaries  the  operation  of  the  general 
laws  as  applicable  to  the  whole  country. 

"  But  when  people  are  placed  in  close  contact  in  a  town 
or  city,  the  safety  of  property  and  persons  there,  the  facility 
of  transacting  their  business,  the  preservation  of  their 
health,  and  the  comforts  and  decencies  of  good  society  in 
their  midst,  require  a  great  many  minor,  though  impor- 
tant, regulations,  too  minute  and  varied  for  general  laws 
and  which  are  peculiar  to  their  condition. 

"  These  regulations  are  to  be  made  in  subordination,  and 
not  contrary  to  the  general  laws.  Still  they  go  far  beyond 
the  general  laws  in  prescribing  the  civil  conduct  of  persons 
in  relation  to  their  personal  conduct  and  property.  In 
order  to  make  these  additional  regulations  binding,  the 
charter  must  be  put  in  operation  by  an  organization,  or  by 
the  action  of  officers  under  it.  An  act  incorporating  a 
town  or  city,  therefore,  is  a  law  of  the  state,  and  more 
than  an  ordinary  law  ;  for  it  constitutes,  when  acted  on,  a 
sort  of  organic  law,  a  constitution  for  a  local  self-govern- 
ment, within  its  territorial  limits,  extending  in  its  scope  to 
the  extra  regulations  required  for  the  good  government  of 
the  city  or  town,  to  be  enacted  and  carried  into  effect  by 
its  municipal  officers." 

Public  policy  demands,  therefore,  and  authority  sanctions, 
the  delegation  of  various  powers  of  local  legislation  to  the 
municipal  body.     The  ordinances  enacted  in  the  execution 

(1)  Williams  v.  Davidson,  43  Tex.  1. 


§  3.]  NATUKE    OF    ORDINANCES.  3 

of  these  powers  have,  within  the  limits  of  the  corporation, 
the  force  of  laws.  They  are  just  as  binding  as  the  laws  of 
the  state  and  general  government;  they  are  enforced  in 
similar  manner  and  under  like  rules  of  construction.- 

"  In  the  exercise  of  its  regulatory  power  the  government 
of  a  city  must  have  as  wide  a  discretion  as  that  possessed 
by  the  government  of  the  state,  in  choosing  between  dif- 
ferent measures  for  accomplishing  the  end.  When  an  or- 
dinance is  passed  under  this  grant  of  power,  it  is  in  force 
by  the  authority  of  the  state,  and  is  to  be  interpreted  and 
executed  as  if  it  had  been  passed  by  the  general  assembly. 
Such,  at  least,  is  its  authority  when  the  question  under 
consideration  is  whether  it  is  inconsistent  with  the  consti- 
tution of  the  United  States."  ^ 

As  statutes  are  tested  by  the  state  constitution,  so  ordi- 
nances are  tested,  not  as  being  of  a  contractual  nature,  but, 
as  laws,  by  the  delegated  power  under  which  they  are 
enacted.     The  charter  is  the  local  constitution.^ 

§  3.  Necessity  of  formal  passage. — Ordinances  being 
in  the  nature  of  laws,  there  is  the  same  necessity  for  their 

(1)  Dill.  Mun.  Corp.,  §  308;  Sedgw.  Stat.  Law,  p.  462;  Bish.  Stat. 
Crimes,  §  11,  a;  Cooley  Const.  Lim,  *211;  Jones  v.  Insurance  Co.,  2  Daly, 
307;  McDermott  v.  Board,  5  Abb.  Pr.  422;  Milne  v.  Davidson,  5  Mar- 
tin, 586;  State  V.  AVilliams,  11  S.  C.  2SS;  Gabel  v.  Houston,  29  Tex. 
336;  Bearden  v.  Madison,  73  Ga.  184;  Heland  v.  Lowell,  3  Allen,  407; 
State  V.  Tryon,  39  Conn.  183;  Hopkins  v.  Swansea,  4  M.  &  W.  621 ; 
Burmeister  v.  Howard,  1  Wash.  Ter.  207;  Wright  v.  Railroad  Co.,  7  HI. 
App.  438;  Church  v.  City,  5  Oow.  538;  St.  Louis  v.  Bank,  49  Mo.  574; 
Taylor  v.  Carondelet,  22  Mo.  105 ;  St.  Louis  v.  Foster,'52  Mo.  513;  Mason 
V.  Shawnee,  77  111.  533;  Bott  v.  Pratt,  33  Minn.  323;  Gas  Company  v. 
Des  Moines,  44  la.  508;  s.  c,  24  Am.  Rep.  756;  Starr  v.  Burlington,  45 
la.  87;  Indianapolis  v.  Gas  Company,  66  Ind.  396.  In  Markle  v. 
Akron,  14  Ohio,  586,  ordinances  were  held  to  be  mere  compacts  be- 
tween the  corporators,  and  not  legislation — so  held  in  order  to  uphold 
the  ordinance  in  the  face  of  a  constitutional  provision  that  "  Legisla- 
tive power  shall  be  vested  exclusively  in  the  general  assembly."  Bu{ 
delegation  to  local  bodies  for  local  purposes  is  certainly  not  within  that 
provision,  and  there  was  no  necessity  for  such  a  strained  holding. 

(2)  St.  Louis  V.  Boffinger,  19  Mo.  13. 

(3)  Gabel  v.  Houston,  29  Tex.  336. 


4  MUNICIPAL   POLICE    ORDINANCES.  [§  o. 

formal  and  definite  expression.  The  power  given  to  cor- 
porations to  legislate  is  a  franchise  or  privilege,  and  the 
extent  to  which  the  corporation  wishes  to  exercise  it  must 
be  defined  by  the  passage  of  an  ordinance.  It  is  not  self- 
executing,  but  requires  an  ordinance  to  put  it  in  force.^ 
The  existence  of  the  power  does  not  warrant  its  direct  ex- 
ercise by  the  ministerial  oflicer.s  of  the  municipality.^  Thus 
power  to  abate  nuisances  does  not  authorize  an  actual 
abatement  of  an  existing  nuisance,  until  the  erection  or 
maintenance  of  nuisances  has  been  declared  unlawful  by 
ordinance;^  nor  does  the  power  to  destroy  instruments  of 
gambling  authorize  a  seizure  until  provided  for  by  ordi- 
nance.* 

§  4.  Charter  prohibition. — If  the  municipal  charter  or 
creating  statute  contains  an  express  and  definite  prohibition 
of  the  doing  some  specified  act  within  the  corporate  limits, 
it  would  not  be  necessarv  to  enact  an  ordinance  covering 
the  prohibition  in  order  to  make  it  effective,  and  its  non- 
observance  punishable  by  the  local  authorities.'  But  the 
charter  prohibition  must  be  accompanied  by  a  prescription 
of  a  penalty,  and  mode  of  recovery.^ 

§  5.  Must  be  passed  by  governing  body. — The  gen- 
eral law  usually  provides  for  the  election  of  a  body  of 
persons  known  as  the  council  or  assembly,  in  whom  is 
vested  the  sole  right  and  duty  of  regulating  the  corporate 
affairs  and  of  exercising  its  franchises;  and  no  legislative 
power  may  be  exercised  by  any  other  body  or  agency.^ 
The  mayor  alone  could  not  prescribe  an  ordinance,  neither 
could  any  one  branch  of  a  compound  legislative  body 
enact  valid   ordinances   without  the   concurrence  of  the 

(1)  Delphi  r.  Evans,  36  Ind.  90;  Bryan  v.  Page,  51  Tex.  532;  People 
V.  Crotty,  93  111.  181 ;  Bull  v.  Quincy,  9  111.  App.  27. 
.  (2)  Idem. 

(3)  Lake  v.  Aberdeen,  57  Miss.  260. 

(4)  Ridgeway  v.  West,  60  Ind.  371 ;  22  Cent.  Law  Jour.  319. 

(5)  Ashton  V,  Ellsworth,  48  111.  299;  Strauss  v.  Pontiac,  40  111.  301. 

(6)  Strauss  v.  Pontiac,  supra. 

(7)  Dill.  Mun.  Corp.,  g  309. 


§  6.]  NATURE    OF   ORMNANCES.  5 

other  branch.  In  a  corporation  governed  by  a  council,  an 
ordinance  adopted  by  the  whole  body  of  qualified  electors 
would  have  no  validity.  Likewise,  the  electors  of  the 
smaller  New  England  towns,  in  which  local  legislation  is 
still  exercised  by  the  corporators  at  large,  could  not,  with- 
out legislative  sanction,  delegate  their  powers  to  a  com- 
mittee of  their  number.  The  body  which  is  recognized  or 
authorized  by  the  law  of  the  state  as  having  the  control  of 
the  corporate  affairs,  whether  it  be  the  citizens  at  large,  or 
a  council,  simple  or  compound,  is  the  only  agency  capable 
of  exercising  the  legislative  privileges  of  the  corporation. 
The  council  must  be  constituted  in  strict  accordance  with 
the  law  under  which  it  seeks  to  exercise  its  powers.^  So, 
where  a  corporation  exists  under  a  special  charter  contain- 
ing provision  for  a  corporate  council  to  be  chosen  in  a 
specified  manner,  and  afterward  impliedly  adopts  the  bene- 
fits of  a  general  law  by  electing  its  council  in  accordance 
with  its  provisions,  the  council  so  elected  will  be  restricted 
to  the  exercise  of  the  powers  granted  by  the  general  law, 
because  the  prior  special  charter  contemplated  the  exercise 
of  its  powers  by  a  council  chosen  in  a  different  manner.^ 

§  6.  Must  regulate  corporate  affairs.— Lastly,  the  or- 
dinance must  regulate  corporate  affairs.  A  distinction 
may  be  drawn  between  the  mere  act  of  passage  and  the 
ordinance  itself  when  passed.  In  one  sense,  a  council  may 
enact  any  thing,  however  absurd  or  unauthorized;  but  such 
an  enactment  would  be  a  nullity,  and  injunction  would  lie 
to  prevent  its  enforcement.^  The  council  would,  however, 
be  enjoined  from  passing  a  contemplated  ordinance,  which, 
if  passed,  would  be  wholly  void,  as  in  plain  excess  of  its 
power,  whenever  surrounding  circumstances  make  the  ex- 
istence alone  of  such  an  ordinance  a  menace  to  important 
interests.     In  order  to  warrant  this  remedy  the  ordinance 

(1)  Dinwiddle  v.  Rushville,  37  Ind,  66. 

(2)  Decorah  v.  Bullis,  25  la.  12.     As  to  the  effect  of  minor  irregular- 
ities in  the  constitution  of  councils,  see  post,  §§  36,  39. 

(3)  Chicago  v.  Evans,  24  111.  52;  Gas  Company  v.  Des  Moines,  44  la. 
405;  s.  c,  24  Am.  Rep.  756. 


6  MUNICIPAL   POLICE    ORDINANCES.  [§  7. 

must  be  one  whose  provisions  are  capable  of  summary  en- 
forcement by  the  ministerial  agents  of  the  corporation, 
without  resorting  to  any  sort  of  judicial  procedure,  other- 
wise the  menaced  interests  would  have  ample  protection  in 
a  court  of  law.^ 

Ordinances,  to  be  valid,  must  be  restricted  in  their  opera- 
tion to  legitimate  corporate  purposes,  those  affecting  the 
welfare  and  security  of  the  community.  As  will  be  seea 
hereafter,^  this  does  not  mean  that  an  ordinance  may  not 
affect  persons  or  property  located  without  the  corporate 
limits,  for  such  an  effect  might  be  incidentally  unavoidable. 
!N"either  does  it  mean  that  an  ordinance  is  invalid  which  is 
incidentally  advantageous  or  injurious  to  some  individual 
or  class.^  But  the  scope  and  aim  of  the  ordinance  must 
neither  be  the  regulation  of  extra-territorial  affairs,  nor  of 
private  rights  and  liabilities.  Ordinances  are  and  must  be 
local  laws,  and  absolute  equality  of  burdens  can  no  more 
be  attained  by  them  than  by  the  laws  of  the  state. 

Most  constitutions  provide  that  all  laws  shall  be  of  a 
general  or  uniform  operation  throughout  the  state,  but  it 
would  obviously  be  fatal  to  the  purpose  of  municipal  or- 
ganization to  construe  such  provision  to  be  applicable  to 
ordinances.  Ordinances  need  be  general  and  uniform  only 
throughout  the  territory  over  which  the  legislature  intend 
they  shall  operate.  So,  ordinances  upon  the  same  subject 
may  be  decidedly  different  in  different  cities,  however  like 
in  size  or  situation.* 

§  7.  Must  not  regulate  civil  liabilities. — Due  regula- 
tion of  corporate  affairs  does  not  include  any  interference 
with  civil  rights  and  liabilities.     Some  courts  hold  that  or- 

(1)  Water-works  v.  Bartlett,  16  Fed.  Rep.  52;  People  v.  Sturtevant 
9  N.  Y.  263;  State  v.  Patterson,  34  N.  J.  L.  163;  State  v.  Jersey  City, 
29  N.  J.  L.  170;  State  v.  Albright,  20  N.  J.  L.  644;  Gartside  v.  East  St 
Louis,  43  111.  47. 

(2)  Post,  g§  26,  88-125. 

(3)  Wetumpka  v.  "Wharf  Company,  63  Ala.  611;  Cook  v.  Johnston,   . 
58  Mich.  437;   Horn  v.  People,  26  Mich.  222. 

(4)  Burckholter  v.  McConnelsville,  20  O.  S.  309;  Trigally  v.  Memphis, 
6  Coldw.  382. 


§  7.]  NATURE    OF    ORDINANCES.  7 

dinances  regulating  duties  that  individuals  owe  to  the 
public  may  be  used  as  evidence  in  cases  where  negligence 
is  charged  in  the  omission  to  do  that  which  is  enjoined  by 
the  ordinance ;  but  even  in  such  cases  the  weight  of  au- 
thority seems  to  be  that  the  remedy  of  the  individual  is  in 
nowise  aiFected  by  the  existence  of  the  ordinance.  It  has 
been  held  that  where  an  act  otherwise  lawful,  such  as  the 
storage  of  oil  in  considerable  quantity  within  the  corporate 
limits,  is  prohibited  by  ordinance,  any  one  specially  dam- 
aged by  an  unlawful  storage  may  base  his  right  to  recover 
damages. upon  the  prohibition  of  the  ordinance.^ 

No  kin'd  of  civil  liability,  except  to  the  corporation,  can 
be  created  by  ordinance.^  Upon  an  ordinance  prescribing 
a  penalty  for  injuries  to  shade  trees  by  animals,  the  owner 
of  the  tree  injured  can  not  base  an  action  against  the  owner 
of  the  animal  that  does  the  injury.  His  only  recourse  is 
to  the  usual  legal  remedies. ^  Where  an  ordinance  pro- 
hibits the  erection  of  bay-windows  so  as  to  obstruct  the 
street,  the  householder  whose  view  is  obstructed  by  such 
an  unlawful  obstruction  has  no  additional  remedy  by  reason 
of  the  ordinance.*  So,  the  prohibition  of  a  certain  trade 
except  under  license,  does  not  give  a  licensee  any  right  of 
action  against  the  corporation  or  against  a  violator  of  the 
ordinance  for  damages  resulting  from  unlicensed  compe- 
tition.^ 

Neither  mp.y  an  ordinance  release  from  civil  liability.^ 
No  one  can  justify  the  damaging  another's  property  on  the 
ground  that  the  penalty  prescribed  by  an  ordinance  for  the 
commission  of  his  injurious  act  bars  all  other  liabilities.' 

(1)  Wright  V.  Railroad  Co.,  7  111.  App.  439. 

(2)  Railroad  Company  v.  Ervin,  89  Pa.  St.  71;  Horn  v.  People,  26 
Mich.  221  ;  Heeney  v.  Sprague,  11  R.  I.  456;  Chambers  v.  Trust  Co.,  1 
Disney  (Ohio),  336;  Van  Dyke  v.  Cincinnati,  1  Disney,  532;  Jenks  v. 
Williams,  115  Mass.  217. 

(3)  Goshen  v.  Crary,  58  Ind.  268. 

(4)  Jenks  v.  Williams,  115  Mass.  217. 

(5)  Peck  V.  Austin,  22  Tex.  261. 

(6)  Mairs  v.  Real  Estate  Association,  89  N.  Y.  498;  Mayor  New  York 
V.  Heft,  13  Daly,  301. 

(7)  Ames  v.  Carlton,  41  111.  261  ;  Dimes  v.  Petley,  L.  R.  15  Q.  B.  276; 


8  MUNICIPAL   POLICE   ORDINANCES.  [§  7. 

A  nuisance  can  not  be  so  legalized  as  to  supplant  ordinary 
remedies.^ 

The  regulation  of  private  property  and  personal  rights 
and  liabilities,  and  the  furtherance  of  individual  interests, 
must  not  be  made  the  prime  object  of  an  ordinance.  Ex- 
cept as  incidental  to  the  welfare  and  good  government  of 
the  community,  they  are  not  included  in  corporate  affairs. 

Arnold  v.  Holbrook,  L.  R.  8  Q.  B.  96 ;  Hartford  v.  Talcott,  48  Conn. 
525. 

(1)  Chambers  v.  Trust  Co.,  1  Disney,  336;  Van  Dyke  v.  Cincinnati',  1 
Disney,  532. 


CORPORATS    POWERS. 


CHAPTER  II. 

COEPOEATE  POWEES. 

§    8.  Scope  of  corporate  powers. 

§    8a.  Corporate  powers  discretionary. 

§    9.  They  are  continuing. 

§  10.  They  may  not  be  delegated. 

§  11.  What  may  not  be  delegated. 

I  12.  What  may  be  delegated. 

§  13.  Discretion  in  granting  licenses. 

§  14.  Source  of  corporate  powers. 

§  15.  The  rule  as  to  source. 

§  16.  Limitations  on  inherent  powers. 

§  8.  Scope  of  corporate  powers. — Under  our  system 
of  government,  the  sole  legislative  power  is  vested  in  the 
state,  and  municipal  corporations  must  be  considered  as 
mere  governmental  agencies.^  The  organized  corporation 
has  some  attributes  and  some  powers  so  distinctly  local  and 
disconnected  from  the  interests  of  the  state  at  large  that 
it  often  acts  in  a  private  capacity.  In  regard  to  some  mat- 
ters appertaining  to  property  interests  it  is  simply  an  agent 
of  the  citizens;  it  may  even  be  a  trustee  of  funds  for  pub- 
lic charities,  and  may  control  a  class  of  affairs  in  which 
none  but  the  citizens  could  be  interested;  but,  so  far  as  the 
powers  that  are  conferred  upon  it  by  the  legislature  are 
concerned,  the  municipality  deals,  and  is  treated,  as  a  gov- 
ernmental agency.^  Its  rights  and  powers  which  are  de- 
rived from  the  state  are  subject  to  repeal,  diminution,  or 
enlargement,  at  the  will  of  the  legislature,  always  preserv- 
ing inviolate  such  property  rights  as  may  have  become 
vested.  Its  powers  are  not  vested  contractual  rights,  they 
are  simply  franchises  or  privileges.^     As  is   said   in  East 

(1)  Detroit  v.  Blakeby,  21  Mich.  84;  Low  v.  Marysville,  5  Gal.  213. 

(2)  Railroad  Co.  v.  New  Orleans,  26  La.  An.  47S ;  Touchard  v.  Touch- 
ard,  5  Cal.  306. 

(1)  Dill.  Mun.  Corp.,  §§  54  and  66  e,t  seq.\  Linton  v.  Carter  Company, 


10  .MUNICIPAL    POLICE    ORDINANCES.  [§  8a. 

Hartford  v.  Hartford  Co.,  "  Towns  are  liable  to  have  their 
public  powers,  rights,  aud  duties  modified  or  abolished  at 
any  moment  by  the  legislature.  They  are  allowed  to  hold 
privileges  or  property  only  for  public  purposes.  Hence, 
generally,  the  doings  between  them  aud  the  legislature  are 
in  the  nature  of  legislation  rather  than  compact,  .  .  . 
aud  to  be  considered  as  not  violated  by  subsequent  legis- 
lative changes." 

Corporations  are,  in  short,  miniature  states,  limited  in 
power  by  their  charters.  As  governmental  agencies  they 
must  be  allowed  to  exercise  all  the  governmental  powers 
that  are  pertinent  to  the  purposes  of  their  organization. 
Their  powers  are  legislative,  ministerial,  and  judicial.  Ju- 
dicial powers  have  mainly  to  do  with  rights  of  property, 
and  their  consideration  enters  principally  into  works  on 
taxation  and  eminent  domain.  Their  exercise  is  necessary 
in  making  provision  for  public  improvements.^  First,  and 
most  important,  is  the  legislative,  or  the  power  of  making 
local  laws.  This  branch  of  municipal  power,  and  the  min- 
isterial power  necessary  to  the  proper  enforcement  of  the 
laws  when  made,  constitute  the  subject-matter  before  us. 

§  8a.  Corporate  power  discretionary. — A  question  is 
often  raised  whether  the  exercise  of  the  power  delegated  to 
municipal  corporations  is  mandatory  or  only  discretionary. 
It  has  been  held  that  the  corporation  becomes  charged  with 
some  imperative  duty  to  protect  those  public  interests 
which  could  be  protected  by  a  lawful  exercise  of  its  power ; 
for  instance,  that  the  corporation  would  render  itself  liable 
in  damages  to  an  individual  who  sufiers  special  injury  from 
a  public  nuisance,  unless  it  attempts  to  exercise  its  power 

23  Fed.  Rep.  535 ;  People  v.  Morris,  13  Wend.  325 ;  C.  B.  &  Q.  Railroad 
Co.  V.  Quincy,  12  111.  App.  184;  Mt.  Carmel  v.  Wabash,  50  111.  69;  Ar- 
noult  V.  New  Orleans,  11  La.  An.  54;  San  Francisco  v.  Canavan,  42  Cal. 
541;  Commissioners  v.  Detroit,  2S  Mich.  228;  East  Hartford  v.  Hart- 
ford Co.,  10  How.  511. 

(1)  In  re  Wilson,  32  Minn.  144;  Dawes  v.  Hightstown,  45  N.  J.  L. 
'401 ;  Kavanagh  v.  Brooklyn,  38  Barb.  232. 


§  10.]  CORPORATE    POWERS.  11 

of  preventing  nuisances.^  But  the  true  doctrine  is,  that 
the  exercise  of  corporate  powers  rests  wholly  within  the 
corporate  discretion,  even  though  great  damage  to  private 
interests  might  result  from  a  refusal.^  Legislative  powers 
are  given  to  municipal  corporations  to  be  used  whenever 
the  council  may  deem  their  exercise  beneficial  to  the  pub- 
lic good,  and  the  discretion  of  the  council  is  not  to  be  con- 
trolled by  others.^ 

§  9.  Powers  are  continuing. — The  powers  granted  to 
municipal  corporations  are  continuing;  that  is,  they  are 
not  exhausted  by  one  exercise.  State  legislatures  are  en- 
tirely powerless  to  restrict  the  action  of  subsequent  legis- 
latures in  regard  to  any  particular  subject  of  legislation; 
and,  analogously,  the  judgment  of  one  council  can  not 
bind  its  successors.  The  subjects  of  municipal  control  can 
not  always  be  treated  in  the  same  manner  at  different 
times  and  under  varying  circumstances,  and  local  legisla- 
tion would  prove  to  be  wholly  ineffectual  if  the  first  exer- 
cise of  power  were  held  exhaustive.  Where  property 
rights  are  created  by  ordinance,  the  further  exercise  of  the 
same  power  will  be  restricted  so  as  to  save  them  ;  but,  with 
this  exception,  the  council  may  exercise  its  powers  as  often 
as  is  deemed  necessary.* 

§  10.  Power  not  to  be  delegated. — Whenever  an  agent 
is  clothed  with  powers  the  exercise  of  which  involves  his 
personal  discretion,  they  can  not  be  delegated  to  others 
without  express  power  so  to  do.     The  rule  is  equally  ap- 

(1)  Commissioners  v.  Duckett,  20  Md.  477;  Baltimore  v.  Pennington, 
15  Md.  12;  Baltimore  v.  Brannan,  14  Md.  227;  Baltimore  v.  Marriott, 

9  Md.  160. 

(2)  Caiu  V.  Syracuse,  95  N.  Y.  88;  Prescott  v.  Battersby,  119  Mass.  285. 

(3)  Post,  §§  188,  253. 

(4)  McCormackv.  Patchin,  53  Mo.  33;  Hoffman  v.  St.  Louis,  15  Mo. 
651;  Karst  v.  Kailway  Co.,  22  Minn.  118;  Goszler  v.  Georgetown,  6 
Wheat.  593;  In  re  Furman  Street,  17  Wend.  649;  Delphi  v.  Evans,  36 
Ind.  90;  Markham  v.  Atlanta,  23  Ga.  402;  Macy  v.  Indianapolis,  17 
Ind.  267;  Gas  Company  v.  Des  Moines,  44  la.  505;  People  v.  Cooper 

10  111.  App.  384. 


12  MUNICIPAL    POLICE    ORDINANCES.  ^     [§  11. 

plicable  to  public  governmeutal  agencies,  like  municipal- 
ities. It  is  essential  that  ordinances  shall  be  passed  by  the 
properly  authorized  body,  and  the  council  can  not  delegate 
its  discretion.  This  statement  needs  a  slight  modification, 
for  many  classes  of  powers  would  be  wholly  ineffectual 
were  not  the  officers  lawfully  intrusted  with  their  execution 
to  have  certain  powers  of  choice  and  discretion.  For  ex- 
ample, in  the  exercise  of  the  power  to  destroy  propertj^  to 
prevent  the  spread  of  fire,  the  ministerial  agents  who  are 
present  at  the  time  the  emergency  arises  musl  of  necessity 
be  the  sole  judges  of  the  advisability  of  tearing  down  ad- 
joining buildings.  It  would  be  impossible  for  the  council 
to  foresee  every  emergency,  and  to  prescribe  in  detail  ap- 
pr  priate  rules  of  action,  i^either  could  the  council  ar- 
range, by  ordinance,  all  the  details  and  steps  to  be  taken 
in  the  construction  of  public  improvements.  The  officers 
executing  or  supervising  the  work  must  have  a  degree  of 
discretion.  The  general  proposition  is  conceded  that  the 
exercise  of  powers  of  local  legislation  demands  discretion 
iti  the  council,  and  that  such  discretion  can  not  be  delegated.^ 
The  difficulty  arises  in  determining  where  to  draw  the 
line  between  those  matters  which  must  be  delegated  to 
others  in  order  to  secure  efficiency  in  execution,  and  those 
wliich  should  be  decided  by  the  council  alone. 

§  11.  What  may  not  be  delegated. — Among  other 
powers  which  courts  have  heid  can  not  properly  be  dele- 
gated are  the  following:  to  improve  the  streets;^  to  grade 

(1)  Tappan  v.  Young,  9  Daly,  357;  Thompson  v.  Schermerhorn,  9 
Barb.  152;  s.  c,  6  N.  Y.  92;  Birdsall  v.  Clark,  73  N.  Y.  73;  Davis  v 
Read,  65  N.  Y.  566;  Brooklyn  v.  Breslin,  57  N.  Y.  691;  Railroad  v. 
Petersborough,  49  N.  H.  281 ;  Baltimore  v.  Scharf,  54  Md.  499 ;  Charles 
V.  Hoboken,  28  N.  J.  L.  202;  Macon  v.  Patty,  57  Miss.  378;  Whyte  v. 
Nashville,  2  Swan,  364;  Hydes  v.  Joyes,  4  Bush,  464;  State  v.  Hauser, 
63  Ind.  155;  Smith  v.  Morse,  2  Cal.  524;  Oakland  v.  Carpenter,  13  Cal. 
540;  Horn  v.  People,  26  Mich.  221 ;  Lauenstein  r.  Fond  du  Lac,  28  Wis. 
336;  St.  Louis  v.  Clemens,  52  Mo.  133;  Thomson  v.  Boonville,  61  Mo. 
282;  In  re  Wilson,  32  Minn.  144;  State  v.  Kantler,  33  Minn.  69;  Rich- 
ardson V.  Heydenfeldt,  46  Cal.  08;  Kinmundy  v.  Mahan,  72  111.  462; 
Jackson  County  v.  Brush,  77  111.  59;  Potter  Corp.  374. 

(2)  Thompson  v.  Schermerhorn,  0  X.  Y.  92. 


§  12.]  CORPORATE    POWERS.  13 

and  pave  the  sidewalks;^  to  ascertain  and  determine  street 
boLiudaries;^  to  determine  the  size  of  sewers;^  to  establish 
markets  and  to  choose  market  sites  ;*  to  grant  to  others  the 
privilege  of  building  railways;^  to  permit  railroads  to  use 
the  tracks  of  other  roads  previously  constructed,  or  to  fix 
the  routes  and  termini  of  railroads  f  to  license  occupations, 
or  to  approve  of  their  existence;^  to  regulate  the  manner 
of  laying  gas  mains  and  pipes  f  to  set  a  time  for  a  judicial 
hearing  on  a  claim  for  damages  from  a  projected  improve- 
ment f  to  fix  the  charge  to  be  made  for  gas  ;^''  to  regulate 
the  amount  of  tolls  of  any  kind  to  be  charged  for  the  use 
of  public  improvements,  such  as  bridges,  turnpikes,  and 
wharves.^^ 

§  12  What  may  be  delegated. — It  has  been  held  law- 
ful to  delegate  to  the  officers  of  the  fire  department  power 
to  judge  of  the  necessity  of  pulling  down  buildings  in  time 
of  emergency  ;^^  to  delegate  to  a  superintendent  of  wharves 

(1)  Hydes  v.  Joyes,  4  Bush,  464;  Hitchcock  v.  Galveston,  96  U.  S. 
341      Contra,  Brewster  v.  Davenport,  51  la.  427. 

(2)  State  V.  Trenton,  36  N.  J.  79. 

(3)  St.  Louis  V.  Clemens,  43  Mo.  395 ;  St.  Louis  v.  Buckner,  44  Mo. 
19;  Shfeehan  v.  Gleeson,  46  Mo.  577;  St.  Louis  v.  Clemens,  52  Mo.  134. 
Contra,  St.  Louis  v.  Oeters,  36  Mo.  456. 

(4)  Davenport  v.  Kelly,  7  la.  1^3;  State  v.  Paterson,  34  N.  J.  163. 

(5)  State  V.  Bell,  34  0.  S.  194. 

(6)  Hickey  v.  Chicago,  etc.,  Eailroad  Co.,  6  111.  App.  173. 

(7)  In  re  Quong  Woo,  13  Fed.  Rep.  229;  s.  c,  7  Sawyer,  526  (consent 
of  vicinage  to  laundry);  St.  Louis  v.  Wehrung,  50  111.  29;  Winants  v. 
Bayonne,  44  N.  J.  L.  114  (to  license  on  recommendation  of  a  certain 
number  of  neighbors) ;  Darling  v.  St.  Paul,  19  Minn.  389;  State  v. 
Fiske,  9  R.  I.  94;  Day  v.  Green,  4  Cush.  433;  State  Center  v.  Baren- 
stein,  66  la.  249.  Contra  under  charter,  Whitten  v.  Covington,  43  Ga. 
42J. 

(8)  Anderson  v.  Gas  Company,  12  Daly,  462. 

(9)  State  V.  Jersey  City.  25  N.  J.  309. 

(10)  Gas  Light  Co.  v.  Dunn,  62  Cal.  580. 

(11)  Lord  t;.  Oconto,  47  Wis.  386;  Matthews  v.  Alexandria,  68  Mo. 
115. 

(12)  White  V  Charleston,  2  Hill,  571.  But  see  CoflBn  v.  Nantucket,  5 
Cush.  269;  Ruggles  v.  Nantucket,  11  Cush.  433. 


14  MUNICIPAL   POLICE   ORDINANCES.  [§  13. 

full  power  to  order  and  regulate  the  mooring  of  vessels  ;* 
to  vest  in  the  overseers  of  markets  full  powers  of  detailed 
supervision;^  to. appoint  committees  or  agencies  to  execute 
and  enter  into  contracts;^  and  in  general,  to  appoint  agents 
to  oversee  and  regulate  the  details  of  construction  in  mak- 
ing public  improvements.* 

§  13.  Discretion  in  granting  licenses. — Tlie  extent  to 
which  discretion  may  be  given  to  the  ministerial  officers  in 
the  granting  of  licenses  is  in  dispute.  Express  power  in 
the  charter  will  warrant  such  delegation.*  The  authorities 
differ  widely,^  but  the  proper  conclusion  seems  to  be  that  as 
little  latitude  should  be  given  to  the  ministerial  officer  as 
possible.  In  exercising  a  power  to  license  certain  occupa- 
tions,  the  council  should  by  its  ordinance  prescribe  the 
exact  occupation  to  be  licensed,  the  amount  of  tlie  fee  to 
be  charged,  either  uniformly  or  by  reasonable  classification, 
the  conditions  upon  which  the  license  may  be  issued,  and 
the  duration  of  its  validity.  And,  unless  the  council  de- 
sires that  all  persons  may  become  licensees  who  choose  to 
comply  with  the  prescribed  conditions,  it  should  define  the 
qualifications  to  be  demanded  of  the  applicant.  It  should 
leave  no  duty  to  the  person  who  issues  the  license,  except 
to  sign  the  certificate  and  to  see  that  the  applicant  has 
complied  with  all  the  conditions.aud  possesses  all  the  quali- 
fications enumerated  by  the  ^ordinance.'  The  ordinance 
might,  for  example,  provide  that  none  but  persons  of  rep- 
utable character  should  receive  licenses.  As  to  the  pos- 
session of  such  a  character  by  the  applicant  the  mayor  or 

(1)  Gregory  v.  Bridgeport,  41  Conn.  76. 

(2)  Charleston  v.  Goldsmith,  2  Spears,  428. 

(3)  Kailway  Co.  v.  Baltimore,  21  Md.  93;  Burlington  v.  Dennison,  42 
N.  J.  L.  165;  Alton  v.  MuUedy,  20  111.  76;  State  v.  Trenton,  42  N.  J. 
L.  72.     But  see  In  re  Trustees,  57  How.  Pr.  500. 

.(4)  Baltimore  v.  Howard,  6  H.  &  J.  383  (street  repairs);  State  v.  New 
Brunswick,  30  N.  J.  L.  395  (grading). 

(5)  Brooklyn  v.  Breslin,  57  N.  Y.  591. 

(6)  Shaw  V.  Pope,  2  B.  &  Ad.  465;  Swarth  r.  People,  109  111.  621. 
Decorah  v.  Dunstan,  38  la.  96. 

(7)  In  re  BickerstaflF(Cal.),  11  Pac.  Rep.  393  (1886). 


§  14.]  CORPORATE    POWERS.  15 

other  officer  issuing  the  license  would  be  the  sole  judge. 
It  would  be  a  simple  question  of  fact.  But,  without  such 
a  restriction  in  the  ordinance  itself,  it  is  very  doubtful,  in- 
deed, whether  the  officer  could  ever  refuse  a  license  to  a 
person  whom  he  believed  to  be  wholly  unfit  to  enjoy  its 
privileges. 

§  14.  Source  of  corporate  powers. — When  municipal- 
ities first  began  to  come  into  prominence  after  the  thirteenth 
century,  their  privileges  were  gained  from  the  sovereign, 
by  purchase  or  force,  and  became  at  once  inalienably  vested. 
At  first,  specific  charters  were  granted ;  but  as  the  rule  of 
the  sovereign  became  less  arbitrary  and  powerful,  munici- 
palities had  no  difficulty  in  usurping  many  privileges  which 
were  never  evidenced  by  formal  grant;  and,  eventually, 
custom  or  long  usage  became  their  only  foundation.  Up  to 
a  comparatively  late  day  in  England,  it  was  frequently 
necessary  to  introduce  proof  of  the  custom  to  exercise  a 
certain  power  in  order  to  recover  a  penalty  ordained  in  its 
pursuance.  In  America,  however,  the  municipality  is  con- 
sidered merely  as  an  agency  of  the  sovereign  power;  and 
not  only  are  its  powers  and  privileges  subject*  to  modifica- 
tion, but  its  very  existence  may  be  terminated  at  the  will 
of  the  legislature.  No  rights  are  inalienable,  and  no  pow- 
ers are  sustained  by  force  of  custom.  A  few  early  decis- 
ions, rendered  before  the  policy  of  our  municipal  system 
was  thoroughly  fixed,  hold  that  long  usage  may  sometimes 
be  sufficient  proof  of  a  former  grant.  The  municipal  cor- 
porations of  this  country  have  been  created  within  the 
memory  of  man,  and  solely  for  the  regulation  of  local  af- 
fairs. In  determining  their  powers  we  must  have  recourse 
to  the  grant  to  which  they  owe  their  corporate  existence, 
be  it  charter  or  general  law,  and  to  such  subsequent  legis- 
lation as  in  any  way  enlarges  or  diminishes  the  original 
grant.  In  some  cases,  corporations  have  been  created 
without  any  definite  grant  of  power.  Courts  consider  that 
there  would  be  no  purpose  in  organizing  a  community  into 
a  corporation,  unless  it  were  to  possess  some  powers;  hence, 
recourse   is  then  had  to  reasonable  implication,  and  the 


16  MDXICIPAL    POLICE    ORDINANCES.  [§  15^ 

legislative  intent  is  construed  to  be  that  the  corporation 
should  possess  such  powers  as  are  essential  to  its  existence 
and  necessary  for  its  good  government. 


§  15.  The  rule. — The  powers  that  may  be  exercised  by 
municipal  corporations  are  : 

1.  Those  expressly  granted. 

2.  Those  necessary  to  the  execution  of  the  express  grant. 

3.  Those  absolutely  essential  to  the  fulfillment  of  the 
purposes  of  their  existence.^ 

A  numerous  class  of  cases  hold  that  an  express  grant  of 
power  implies  such  further  powers  as  are  necessary  to  the 
perfect  exercise  of  those  granted.^     Some  of  them  hold 

(1)  Dill.  Mun.  Corp.,  §  89;  Treadway  v.  Schnauber,  1  Dak.  227;  Cou- 
teulx  V.  Buffalo,  33  N.  Y.  333;  State  v.  Mobile,  5  Port.  279;  Bank  v. 
Navigation  Co.,  3  La.  An.  294;  Christie  v.  Maiden,  23  W.  Va.  667; 
Carter  v.  Dubuque,  35  la.  416;  Merriam  v.  Moody,  25  la.  163;  Caldwell 
V.  Alton,  33  111.  41i3;  Cook  County  v.  McCrea,  73  111.  236;  Ex  parte 
Mayor  of  Florence,  78  Ala.  419;  Ouachita  v.  Monroe,  37  La.  Ann.  641 ; 
Charleston  v  Red  27  W.  Va.  681;  State  v.  Norristown,  33  X.  J.  L.  57; 
Herford  v.  Omaha,  4  Neb.  3')0;  Smith  v.  Newburn,  70  N.  C.  14. 

(2)  Ex  parte  Burnett,  30  Ala.  4*51 ;  Ottawa  v.  Carey,  108  U.  S.  121; 
Dunbar  i-.  San  Francisco,  1  Cal.  356 ;  Smith  v.  Morse,  2  Cal.  524 ;  Oak- 
land V.  Carpentier,  13  Cal.  540;  Johnston  v.  Louisville,  11  Bush,  527; 
Henderson  v.  Covington,  14  Bush,  312;  Davis  v.  New  Yoi'k,  1  Duer, 
451 ;  State  v.  New  York,  3  Duer,  119;  Bank  v.  Chillicothe,  7  Ohio  (pt. 
2),  35;  Collins  v.  Hatch,  18  Ohio,  523;  Andrews  v.  Insurance  Co.,  37 
Me.  256;  Waterbury  v.  Laredo,  60  Tex.  519;  Kirkham  v.  Russel,  76 
Va.  956;  Danville  v.  Shelton,  76  Va.  325;  Robertson  v.  Groves,  4  Oreg. 
210;  Cornwallis  V.Carlisle,  10  Oreg.  139;  Tucker  v.  Virginia  City,  4 
Nev.  20;  State  v.  Swift,  11  Nev.  129;  Douglass  v.  Virginia  City,  5  Nev. 
147;  Leavenworth  v.  Norton,  1  Kan.  432;  Leavenworth  v.  Rankin,  2 
Kan.  357;  Leonard  i'.  Canton,  35  Miss.  189  ;  Sykes  v.  Columbus,  55  Miss. 
115;  Keokuk  v.  Scroggs.  39  la.  447;  State  v.  Atlanta,  72  Ga.  428;  Smith 
V.  Madison,  7  Ind.  86;  Webster  v.  Harwinton,  32  Conn.  131;  Douglass 
V.  Placerville,  18  Cal.  643;  Johnson  v.  Philadelphia,  60  Pa.  St.  445; 
Bessoinies  v.  Indianapolis,  71  Ind.  189;  Peterson  v.  New  York,  17  N. 
Y.  449;  Meech  v.  BuflFalo.  29  N.  Y.  198;  Ketchum  v.  Buffalo,  14  N.  Y. 
356;  Abendroth  v.  Greenwich,  29  Conn.  203;  New  Haven  v.  Sargent, 
38  Conn.  50;  New  London  v.  Brainard.  22  Conn.  552;  Minturn  v. 
Larue,  23  How.  4-35;  Scott  v.  fthreveport,  20  Fed.  Rep.  714;  Ho  Ah 
Kow  V.  Neenan,  5  Sawyer,  552;  Petersburg  v.  Metzger,  21  111.  205; 
Montgomery  v.  Plank  Road  Co.,  31  Ala.  76;  Harris  v.  Livingston,  2& 


§  15.]  CORPORATE    POWERS.  17 

that  the  powers  expressly  granted  and  those  thus  incidental 
are  the  only  powers  that  may  be  exercised  by  the  corpora- 
tion; others  merely  recognize  the  existence  of  these  two 
classes,  without  expressing  an  opinion  as  to  whether  the 
corporation  may  not  have  still  other  powers. 

A  few  cases  are  so  strict  as  to  deny  to  corporations  the 
right  to  exercise  any  powers  whatever  except  those  ex- 
pressly granted.^  The  council,  or  the  citizens,  surely  have 
no  ability  to  increase  their  powers  by  direct  enactment, 
specifically  granting  additional  authority  to  the  council,^ 
but  the  council  ought. not  to  be  bound  down  to  the  strict 
letter  of  the  law. 

Under  the  system  adopted  by  most  of  the  states  of  classi- 
fying municipal  corporations,  and  granting  them  powers 
by  classes,  it  is  fairly  accurate  to  say,  with  the  majority  of 
cited  cases,  that  corporate  powers  are  restricted  to  those 
expressly  granted  and  those  incidental  to  express  powers ; 
but,  even  then,  some  powers  might  be  denied  whose  exer- 
cise is  indispensable  to  the  purposes  of  corporate  organiza- 
tion. Powers  of  this  class,  the  third  enumerated  in  the 
preceding  general  proposition,  ought  to  be  recognized  as 
being  inherent  in  the  corporation,  needing  no  express  grant 
as  a  basis.^  Such  are  power  to  sue,  purchase  and  sell  ;^  to 
grade  and   pave  the  streets;^  to  provide  a  suitable   city 

Ala.  577;  Poillon  v.  Brooklyn,  101  X.  Y.  132;  Dean  v.  Madison,  7  Wis. 
688;  Mills  v.  Gleason,  11  Wis.  470  ;  Ex  parte  Strahl,  16  la.  369;  Datton 
V.  Aurora,  114  111.  138;  Blake  v.  Walker,  23  S.  Car.  517;  Mather  v.  Ot- 
tawa, lU  111.  659. 

(1)  Jacksonville  v.  McConnell,  12  111.  138;  Waters  v.  Leech,  3  Ark. 
115;  McCullen  v.  Charleston,  1  Bay,  46;  Zylstra  v.  Charleston,  1  Bay, 
382;  Leach  v.  Cargill,  60  Mo.  316;  New  Orleans  v.  Insurance  Co.,  25 
La.  Ann.  390;  Zottman  v.  San  Francisco,  20  Cal.  96;  Herzo  v.  San  Fran- 
Cisco,  33  Cal.  134;    Branham  v.  S.in  Jose,  24  Cal.  601. 

(2)  Torrent  v.  Muskegon,  47  Mich.  1 15 ;  Mt.  Pleasant  v.  Beckwith, 
100  U.  S.  514;  Desty  on  Taxation,  §  781. 

(3)  Bishop  Stat.  Cr.,  §§  18,  19;  Commonwealth  v.  Stodder,  2  Cush. 
562;  Harris  v.  Livingston,  28  Ala.  577;  and  cases  cited  under  note  1, 
§  15,  supra. 

(4)  .Jonesborough  v.  McRee,  2  Yerg.  167. 

(5)  Keasy  v.  Louisville,  4  Dana,  154;  White  v.  McKeesport,  101  Pa. 
St.  394. 

o 


18  MUNICIPAL    POLICE    ORDINANCES.  [§  16. 

hall  ;^  to  borrow  money  f  to  protect  the  health,  peace,  and 
comfort  of  its  citizens  f  to  purchase  fire  engines;*  to  regu- 
late the  use  of  the  streets  by  droves  of  cattle  f  to  provide 
a  water  supply;®  and  to  give  bonds  for  a  just  debt.^ 

§  16.  Limitation  of  inherent  powers. — There  are  many 
cases  which  hold  in  opposition  to  the  rule  enunciated  in 
the  preceding  section  that  corporations  have  no  inherent 
powers.^  However  germane  to  the  general  purposes  of 
municipal  organization  certain  inherent  powers  may  be, 
the  right  to  exercise  them  should  not  be  upheld  for  that 
reason  alone.  Their  exercise  must  be  absolutely  necessary 
to  the  accomplishment  of  those  purposes.  The  inherent 
powers  claimed  should  be  such  as  are  essential  to  the  wel- 
fare of  the  community.  Their  exercise  should  never  in- 
volve the  prescription  of  a  penalty  for  their  non-observ- 
ance ;  for,  however  liberal  courts  may  be  to  municipal  cor- 
porations, the  imposition  of  penalties  except  by  the  general 
government  in  a  direct  manner  is  regarded  with  disfavor.' 
Powers  encroaching  upon  the  rights  of  the  public  or  of  in- 
dividuals must  be  plainly  and  literally  conferred  by  the 
statute  or  charter.^"  A  corporation  can  not  be  held  to  pos- 
sess any  inherent  or  necessary  power,  if  in  the  charters  of 
other  corporations  of  the  same  class  that  power  is  made  the 
subject  of  special  mention  and  grant."     A  positive  power 

(1)  Torrent  i\  Muskegon,  47  Mich.  115. 

(2)  Mills  V.  Gleason.  11  Wi.s.  470;  Bank  v.  Chillicotbe,  7  Ohio  (pt. 
2).  35. 

(3)  Ferguson  v.  Selma,  43  Ala.  400. 

(4)  Mayor  v.  Rumsey,  63  Ala.  352. 

(5)  Board  v.  Heister,  37  N.  Y.  661. 

(6)  Rome  r.  Cabot,  2S  Ga.  50;  Wells  v.  Atlanta,  43  Ga.  67;  Living- 
ston v.  Pippin,  31  Ala.  542. 

(7)  Reinboth  v.  Pittsburgh,  41  Pa.  St.  2TS ;  Williamsport  v.  Com- 
monwealth, 84  Pa.  St.  487. 

(8)  Mobile  v.  Moog,  53  Ala.  561;  State  v.  Green  Co..  54  Mo.  540; 
Corry  v.  Gaynor,  22  0.  S.  593;  Anderson  v.  Commissioners,  12  0.  S. 
635;   Roberts  v.  Easton,  9  0.  S.  98;  People  v.  Mitchell,  35  N.  Y.  5.')1. 

(9)  Farnsworth  v.  Pawtucket,  13  R.  1.  82. 

(10)  Breninger  v.  Belvidere,  44  N.  J.  L.  350. 

(11)  Commonwealth  v.  Voorhis,  12  B.  Mon.  361;  Collins  v.  Hatch,  18 
Ohio,  525. 


I  16.]  CORPORATE    POWERS.  19 

is  not  conferred  by  an  express  charter  prohibition  of  some 
act  or  trade.'^  ITeither  can  a  power  be  derived  from  mere 
inference.^  When  a  certain  power,  as  of  police,  was 
granted  for  a  specified  length  of  time,  further  power  does 
not  arise  by  implication  at  the  expiration  of  that  tirae.^ 

(1)  Strauss  u.  Pontiac,  40  111.  301;  Ash  ton  v.  Ellsworth,  48  111.  299; 
ante,  §  4. 

(2)  Logan  v.  Pyne,  43  la.  524. 

(3)  Fertilizing  Co.  v.  Hyde  Park,  70  111.  634 


20  MUNICIPAL   POLICE   ORDINANCES.  [§  17. 


CHAPTER  III. 

CONSTEUCTION  OF  COKPORATE  POWERS. 

§  17.  Powers  construed  strictly  against  the  corporation. 

§  18.  Limited  to  the  terms  of  an  enumeration. 

§  19.  Illustrations. 

§  20.  Rule  of  ejusdcm  generis  in  enumerations. 

§  21.  Concurrent  powers. 

§  22.  The  greater  power  includes  the  less. 

§  23.  Retroactive  ordinances. 

§  24.  Conditions  precedent. 

§  17.  Powers  construed  strictly  against  the  corpora- 
tion. — Corporate  powers,  being  delegated,  must  be  strictly- 
construed  and  plainly  conferred.  Whenever  a  genuine 
doubt  arises  as  to  the  right  to  exercise  a  certain  power,  it 
must  be  resolved  against  the  corporation  and  in  favor  of 
the  general  public*  Judge  Dillon  says:  ''If,  upon  the 
whole,  there  be  fair,  reasonable,  and  substantial  doubt 
whether  the  legislature  intended  to  confer  the  authority  in 
question,  particularly  if  it  relates  to  a  matter  extra-muni- 
cipal or  unusual  in  its  nature,  and  the  exercise  of  which 
will  be  attended  with  taxes,  tolls,  assessments,  or  burdens 
upon  the  inhabitants,  or  oppress  them,  or  abridge  natural 
or  common  rights  or  divest  them  of  their  property,  the 

(1)  Dill.  Mun.  Corp.  §2  89,  91,  and  note;  Commissioners  v.  Mighels, 
7  0.  S.  109;  Bank  v.  Chillicothe,  7  Ohio  (pt.  2),  35;  Collins  v.  Hatch,  18 
Ohio,  523;  Leonard  v.  Canton,  35  Miss.  189;  Robertson  v.  Groves,  4 
Oreg.  210;  Cornwallis  v.  Carlisle,  10  Oreg.  130;  Kirkham  v.  Russel,  75 
Va.  956;  Danville  v.  Shelton,  7G  Va.  325;  Wheatly  v.  Covington,  11 
Bush,  18;  Eufaula  v.  McNab,  07  Ala.  588;  Trowbridge  v.  Newark,  46  X. 
J.  L.  140;  Willard  v.  Killingworth,  8  Conn.  247;  Higley  v.  Bunce.  10 
Conn.  435;  Lafayette  v.  Cox,  5  Ind.  38;  Kniper  v.  Louisville,  7  Bush, 
599;  Burlington  v.  Kellar,  18  la.  59;  Logan  v.  Pyne,  43  la.  524;  s.  c, 
22  Am.  Rep.  261;  Clark  v.  Davenport,  14  la.  495;  Nichol  r.  Nashville, 
9  Humph.  252;  Sedgw.  Const.  Law,  p.  466,  notes;  7  Am.  &  Eng.  Corp. 
Gas.  670. 


§  18.]      CONSTRUCTION  OF  CORPORATE  POWERS.  21 

doubt  should  be  resolved  in  favor  of  the  citizen  and  against 
the  municipality." 

The  rule  is  most  strictly  observed  in  construing  powers 
that  may  lead  to  an  infringement  of  personal  or  property 
rights.  Where  no  such  infringement  is  threatened,  the  tend- 
ency of  courts  is  to  construe  ambiguities  in  the  power  so  as 
to  effectuate  the  grant.^  The  application  of  the  rule  should 
not  be  made  to  defeat  the  right  to  exercise  powers  which 
are  essential  to  the  good  government  of  the  community,^ 
and  especially  not  when  the  power  sought  to  be  exercised 
is  such  as  to  concern  no  one  but  citizens  of  the  munici- 
pality.^ 

Evidence  of  the  construction  put  upon  a  doubtful  p'ower 
by  the  corporation  is  inadmissible.  The  intention  of  the 
legislature  is  the  sole  guide.*  That  intention  is  to  be  dis- 
covered by  a  fair  construction  of  the  language  used,  and  in 
no  other  way.  Parol  or  extrinsic  evidence  of  that  intent 
is  inadmissible. 

§  18.  Limited  to  the  terms  of  an  enumeration. — The 
charter  or  statute  granting  powers  to  municipal  corpora- 
tions usually  enumerates  those  which  may  be  exercised. 
It  is  a  general  rule  that  all  powers  not  mentioned  in  the 
enumeration,  and  not  incidental  to  those  enumerated,  are 
not  intended  to  be  included  in  the  grant.  All  other  powers 
are  impliedly  excluded.^  Expressio  unius  est  exdusio  al- 
terius.  But,  "the  enumeration  of  special  cases  does  not, 
unless  the  intent  be  apparent,  exclude  the  implied  power 

(1)  State  V.  Smith,  31  la.  493;  Williams  v.  Davidson,  43  Tex.  1;  Kyle 
V.  Malin,  8  lud.  34. 

(2)  Smith  V.  Madison,  7  Ind.  86. 

(3)  Port  Huron  v.  McCall,  46  Mich.  565. 

(4)  Otherwise  in  England,  where  powers  may  be  acquired  by  long 
usage.  Blankley  v.  Winstanley,  3  T,  R.  279;  King  v.  Bellringer,  4  T. 
E.  810. 

(5)  Cairo  v-  Bross,  101  111.  475;  Plaquemines  v.  Roth,  29  La.  Ann. 
261 ;  New  Orleans  v.  Phillipi,  9  La.  Ann.  44;  Telephone  Co.  v.  Osh- 
kosh,  62  Wis.  32. 


22  MUNICIPAL    POLICE    ORDINANCES.  [§  20. 

any  further  than  necessarily  results  from  the  nature  of  the 
special  provisions."^ 

§  19.  Illustrations. — Where  a  power  was  granted  to 
prohibit  the  traffic  in  liquors,  and  to  license  and  regulate, 
or  prohibit  inns  and  taverns,  an  ordinance  regulating  the 
sale  of  liquors  outside  of  inns  and  taverns  was  held  void.^ 

Power  to  license  specified  trades  can  not  be  extended  to 
apply  to  other  trades  than  those  mentioned  in  the  enumera- 
tion.' So,  where  the  corporation  is  permitted  to  enforce 
certain  powers  by  penal  prosecutions,  the  enforcement  of 
other  powers  in  that  manner  is  impliedly  prohibited.* 

When  a  corporation,  originally  chartered  to  exercise 
general  powers,  accepts  the  provisions  of  a  special  charter 
that  contains  an  enumeration  of  its  powers,  it  may  only 
exercise  those  that  are  mentioned  in  the  enumeration.'  It 
is  held  in  Massachusetts  that  an  enumeration  will  not 
be  construed  to  exclude  the  exercise  of  such  powers  as  are 
necessary  to  the  purposes  of  corporate  existence,  for  ex- 
ample, to  establish  markets.^  Powers  are  considered  to  be 
intentionally  omitted  when  it  is  the  legislative  custom  to 
gr^ut  them  to  municipalities/ 

§  20.  Ejusdem  generis. — It  often  occurs  in  a  grant  of 
power  that  the  enumeration  of  specific  rights  is  followed 
by  some  expression  of  general  import.  The  general  ex- 
pression extends  the  enumeration  only  to  include  things 
which  are  of  the  same  kind  as  those  specifically  named.* 

(1)  Dill.  Mun.  Corp.,  §316,  note;  Indianapolis  v.  Gas  Company,  6& 
Ind.  396;  Clark  v.  South  Bend,  85  Ind.  276;  s.  c,  44  Am.  Rep.  13. 

(2)  State  V.  Fay,  44  N.  J.  474. 

(3)  Winants  v.  Bayonne,  44  N.  J.  L.  114;  Plaquemines  v.  Roth,  29 
La.  Ann.  260;  New  Hampton  v.  Conroy,  56  la.  498;  Oskaloosa  v.  Tullis, 
25  la.  440.  An  apparent  exception  to  the  rule  in  Allerton  v.  Chicago, 
6  Fed.  Rep.  555. 

(4)  Grand  Rapids  v.  Hughes,  15  Mich.  54. 

(5)  Keokuk  v.  Scroggs,  39  la.  447. 

(6)  Spaulding  v.  Lowell,  23  Pick.  7L 

(7)  Collins  V.  Hatch,  18  Ohio.  524. 

(8)  St.   Louis  V.  Laughlin,  49  Mo.  559;  Tuck  v.  Waldron,  31  Ark. 


§  21.1  CONSTRUCTION    OF   CORPORATE   POWERS.  23 

Thus  a  power  to  license  backs,  drays,  and  other  vehicles, 
would  authorize  the  imposition  of  a  license  on  all  kinds  of 
hacks  and  drays,  but  not  on  vebicles  used  for  other  pur- 
poses. This  implication  does  not  pxist  if  a  view  of  tbe 
entire  act  sbows  tbat  tbe  legislature  intended  to  extend 
the  enumeration  by  tbe  general  term.^ 

§  21.  Concurrent  powers. — It  also  frequently  happens 
that  two  powers  are  in  a  degree  concurrent,  so  that  a  cer- 
tain ordinance  could  be  properly  enacted  in  pursuance  of 
either;  for  exam pl'e,  tbe  power  to  regulate  markets,  and 
the  power  to  regulate  streets.  Perhaps  special  formalities 
in  the  mode  of  procedure  are  attached  to  the  exercise  of 
one  power,  and  not  to  tbe  other.  An  ordinance  tbat  can 
be  sustained  under  either  is  valid  if  properly  passed  under 
either,  and  need  not  conform  to  the  formalities  of  a  con- 
current power,  under  wbicb  it  might  equally  well  bave 
been  passed.^ 

But  care  must  be  taken  not  to  confound  general  witb 
special  powers  in  the  application  of  this  principle.  For 
instance,  an  ordinance  tbat  might  be  valid  under  either  of 
two  special  powers  such  as  those  just  mentioned,  will  be 
held  to  bave  been  passed  under  tbat  power  to  tbe  formal- 
ities of  wbicb  it  has  accorded ;  but  if  a  special  power  is 
given  to  enact  ordinances  of  a  certain  class,  an  ordinance 
of  that  class  must  conform  to  the  requirements  of  that 
power,  and  can  not  be  beld  valid  as  supported  by  some  other 
general  power,  altbougb,  did  tbe  charter  not  contain  tbe 
special  power,  the  ordinance  would  be  valid  under  the  gen- 
eral power.^  The  legislature,  by  prescribing  additional 
formalities  to  be  observed  in  tbe  exercise  of  a  certain 
power,  expresses  an  intention  that  tbat  power  shall  not  be 
exercised  in  any  otber  manner. 

462;  Thomas  v.  Hot  Sgrings,  34  Ark.  553;  Stslte  v.  Ferguson,  33  N.  H. 
426 ;  St.  Paul  v.  Traeger,  25  Minn.  248 ;  Snyder  v.  North  Lawrence,  8 
Kan.  82. 

(1)  State  V.  Ferguson,  33  N.  H.  426. 

(2)  Commonwealth  v.  Brooks,  109  Mass.  355. 

(3)  Sumter  v.  Deschamps,  4  S.  C.  207  (but  see  Gray  v.  Brooklyn,  7 
Hun,  632);  Keokuk  v.  Scroggs,  39  la.  447. 


24  MUNICIPAL    POLICE    ORDINANCES.  [§  24. 

§  22.  The  greater  includes  the  less. — Au  expression 
of  power  must  be  taken  to  include  the  right  to  exercise 
any  lower  degree  of  that  power.  The  greater  includes  the 
less.^  Thus,  a  charter  authorization  to  regulate  bankers 
and  money  changers  does  not  require  that  the  ordinance 
must  be  directed  against  both  bankers  and  money  chang- 
ers.^ An  ordinance  that  regulates  bankers  alone  would  be 
perfectly  valid.  Power  to  prohibit  includes  power  to  par- 
tially prohibit,  to  license,  regulate,  or  restrain.^  Conjunc- 
tive words  may  always  be  read  disjunctively  in  order  to 
authorize  the  exercise  of  any  part  of  the  power  granted.* 

§  23.  Retroactive  ordinances. — Corporations  can  no 
more  pass  ex  post  facto  laws  than  can  the  legislature. 
Vested  rights  can  not  be  interfered  with,  nor  acts  made 
unlawful  which  were  lawful  when  committed.  But  unless 
some  vested  right  is  disturbed,  or  some  additional  burden 
imposed,  there  seems  to  be  no  objection  to  giving  an  ordi- 
nance retroactive  eiiect.  Thus,  the  provisions  of  an  ordi- 
nance regulating  the  mode  of  deciding  contested  elections 
to  local  offices  may  be  made  applicable  to  contests  arising 
in  an  election  held  prior  to  the  passage  of  the  ordinance.* 
It  has  been  held  that  municipal  ordinances  may  not  operate 
retroactively  unless  explanatory  of  a  statute,  declaratory 
of  the  common  law,  or  regulatory  of  ministerial  acts.^ 

§  24.  Conditions  precedent. — A  numerous  class  of 
powers  is  usually  vested  in  municipal  corporations,  the 
right  to  exercise  which  depends  upon  the  prior  fulfill- 
ment of  some  condition.  The  exercise  of  the  power  to 
undertake   many   kinds   of   public   improvements   aft'ects 

(1)  Tipton  V.  Norman,  72  Mo.  3S0;  Monroe  v.  Hoffman,  29  La.  Ann. 
651. 

(2)  Hinckley  v.  Belleville,  43  111.  183. 

(3)  Keokuk  v.  Dressell,  47  la.  597;  Burlington  v.  Lawrence,  42  la. 
681;  Gunnarssohn  v.  Sterling,  92  111.  5G0;  Franklin  v.  Westfall,  27 
Kan.  614. 

(4)  Post,  §  195. 

(5)  State  V.  Johnson,  17  Ark.  407. 

(6)  Howard  v.  Savannah,  T.  U.  P.  Charlt.  173. 


§  24.]      CONSTRUCTION  OF  CORPORATE  POWERS.         25 

property  rights,  and  the  benefit  of  the  improvement  may 
accrue  mainly  to  thbse  citizens  whose  property  is  adjacent 
to  the  proposed  improvement,  and  only  remotely  to  the 
community  at  large.  In  such  cases  it  is  only  just  that  those 
who  are  specially  benefited  should  bear  the  burden,  or  the 
larger  part  of  the  burden.  But  it  is  also  just  that  those 
who  must  bear  the  burden  should  have  some  voice  in  de- 
termining the  need  for  the  improvement;  hence  the  cus- 
tomary charter  or  statute  provision  that  a  corporation  can 
only  undertake  certain  improvements  upon  the  petition  or 
approval  of  the  property  owners  most  aiFected  thereby. 
The  right  to  make  improvements  which  will  afifect  a  lim- 
ited number  of  i»ersons  ought  not  to  be  exercised  without 
giving  them  notice  and  an  opportunity  to  be  heard  in  op- 
position. When  a  certain  step  to  be  taken  by  the  adjoin- 
ing owners  is  prescribed  as  a  condition  precedent  to  an  ex- 
ercise of  the  corporate  power,  the  condition  must  be 
strictly  and  faithfully  observed,  else  those  who  are  holden 
for  the  cost  will  not  be  bound  by  the  corporate  action.* 

If  the  condition  precedent  is  ignored  the  ordinance  is 
absolutely  void,  and  the  local  assessments  levied  in  pur- 
suance of  its  authority  can  not  be  collected.^  When  the 
condition  precedent  is  the  presentation  of  a  petition  signed 
by  a  certain  proportion  of  the  adjoining  owners,  it  is  the 
duty  of  the  council  to  see  that  the  petition  presented  has 
the  requisite  number  of  signers,  and  their  deteimination 
of  that  fact  can  not  be  attacked  collaterally.^  if  the  pe- 
tition should  be  signed  by  a  majority  of  the  owners  to  be 
benefited,  the  condition  is  sufficiently  complied  with  by  a 
petition  signed  by  all  the  adjoining  owners,  asking  that  the 

(1)  Mott  V.  New  York,  2  Hilton,  358;  Harrington  v.  Corning,  61 
Barb.  396 ;  Canfield  v.  Smith,  34  Wis.  381 ;  Railroad  Co.  v.  Evansville, 
15  Ind.  395;  Hickey  v.  Railroad  Co.,  6  111.  App.  173;  Tallant  v.  Bur- 
lington, 39  la.  543;  Hitchcock  v,  Galveston,  3  Woods,  287.  But  notice 
of  intention  to  make  a  local  improvement  is  unnecessary  unless  pre- 
scribed by  the  organic  law  of  the  corporation.  Matter  of  Zborowski, 
^i  X.  Y.  98. 

(2)  Wittier  v.  Cavender,  3  Mo.  App.  580;  In  re  Smith,  52  N.  Y.  526; 
In  re  Douglass,  46  N.  Y.  42;  Covington  v.  Nelson,  35  Ind.  532. 

(3)  Railroad  v.  Evansville,  15  Ind.  395. 


26  MUNICIPAL    POLICE    ORDINANCES.  [§    24. 

improvement  be  made  and  the  expense  assessed  on  their 
land.^  Any  material  variation  is  fatal.  Still  it  has  been 
held,  though  surely  not  in  accordance  with  the  reason  and 
justice  of  the  rule,  where  a  petition  is  signed  by  less  than 
the  required  two-thirds  of  the  lot-owners,  that  the  ordi- 
nance enacted  will  be  valid  if  passed  by  more  than  two- 
thirds  of  the  council.^  Property  owners  can  withdraw 
their  signatures  at  any  time  before  final  action  on  the  peti- 
tion.^ 

The  rule  of  strict  observance  is  equally  applicable  where 
the  condition  precedent  consists  in  the  recommendation 
of  some  board,  or  the  declaration  by  the  council  of  the  ne- 
cessity for  the  improvement.*  But  the  written  recom- 
mendation of  the  board  of  improvements  is  not  ren- 
dered worthless  by  immaterial  irregularities,  such  as  the 
omission  of  the  clerk  of  the  board  to  sign  the  same,  even 
though  the  statute  says  that  the  recommendation  shall  be 
signed  by  him.^ 

The  necessity  of  close  adherence  to  the  formalities  pre- 
scribed by  statute  is  more  fully  treated  in  Chapter  V,  post. 

(1)  Baldwins.  Oswego,  2  Keyes,  132 

(2)  Indianapolis  u.  Mansur,  15  Ind.  112. 

(3)  Button  V.  Hanover,  42  0.  S.  215 ;  Hays  v.  Jones,  27  O.  S.  218. 

(4)  Reynolds  v.  Schweinefus,  18  0.  S.  85;  Bolton  v.  Cleveland,  35  O, 
S.'319;  Fisher  V.  Graham,  1  Sup.  Ct.  Rep.  (Ohio)  113. 

(5)  Fisher  v.  Graham,  supra,  note  4. 


25.]  CONSTRUCTION    OF    COMMON    PHRASES.  27 


CHAPTER  IV. 

CONSTRUCTION  OF  COMMON  PHRASES. 

'    §  25.  Common  phrases  in  grants  of  powers. 
§  26.  Corporate  purposes. 
§  27.  General  welfare. 
§  28.  Peace  and  good  government, 
§  29.  Other  general  expressions. 
§  30.  To  regulate. 
§  31.  To  suppress  and  restrain. 
§  32.  Miscellaneous  expressions. 
§  33.  General  rules  of  construction. 

§  25.  Oomnion  phrases. — It  is  the  policy  of  modern 
legislation  to  enumerate  in  considerable  detail  the  power 
which  it  shall  be  lawful  for  municipal  corporations  to  exer- 
cise, at  least  to  group  them  into  classes  according  to  their 
subject-matter.  Each  group  or  class  contains  a  definition 
of  the  subject  to  which  it  applies  and  specifies  the  degree 
of  power  that  may  be  exercised.  The  definition  of  the  sub- 
ject-matter must  be  construed  according  to  the  general 
rules  of  statutory  construction  and  with  regard  to  the  spe- 
cial circumstances  of  each  case.  The  grant  of  power  is 
generally  expressed  by  certain  words  and  phrases  which  are 
more  or  less  common  to  all  charters  and  empowering  stat- 
utes. Such  expressions  as  "  to  regulate,"  "  to  control"  "  to 
govern,"  "  to  suppress,"  "  to  restrain,"  and  "  to  establish,"  are 
most  frequent,  and  their  exact  scope  has  often  been  the  sub- 
ject of  judicial  determination. 

Whenever  corporate  powers  are  not  granted  in  such 
detail,  expressions  of  much  broader  import  are  used,  and 
the  municipality  is  given  power  to  enact  all  ordinances 
essential  to  its  "  corporate  purposes,"  to  the  preservation  of 
"  peace  and  good  order,"  to  ^^  good  government,''  to  the  ^^  gen- 
eral welfare  of  the  community,"  and  the  like.  The  scope  of 
such  general  expressions  is  much  more  difficult  to  define, 


28  MUNICIP  \L    POLICE    ORDINANCES.  [§  26. 

and  the  rules  b}-  which  courts  are  sroverned  in  their  inter- 
pretation are  numerous  and  indefinite.  As  a  general  rule 
all  such  expressions  are  construed  strictly  against  the  right 
to  exercise  a  disputed  or  doubtful  power,  unless  the  essen- 
tial purposes  of  municipal  organization  would  thereby  be 
defeated. 

§  26.  Corporate  purposes. — Municipal  organization  is 
resorted  to  for  the  better  administration  and  execution  of 
the  police  powers  of  the  state ;  and,  hence,  where  no  more 
definite  grant  of  power  is  made  than  for  "  corporate  pur- 
poses "  generally,  the  grant  must  include  all  things  usually 
classed  under  police  powers,  together  with  such  as  are  abso- 
lutely essential  to  the  proper  organization  and  conduct  of 
th'e  local  government.  The  expression  "  corporate  pur- 
poses "  is  practically  equivalent  to  the  definition  of  police 
powers,  and  includes  the  regulation  of  all  subjects  which 
afitect  the  peace  and  good  order  of  the  community,  and  the 
health,  welfare,  and  comfort  of  its  inhabitants.  So  long  as 
only  objects  of  a  police  nature  are  sought  to  be  attained, 
the  judgment  of  the  corporate  authorities  is  generally  a 
safe  guide.' 

The  main  corporate  purposes  are  the  preservation  of 
good  order  and  health;  the  protection  of  life  and  property 
against  such  special  dangers  as  arise  from  peculiar  physi- 
cal characteristics  of  the  locality,  or  from  the  nature  of  the 
industries  prosecuted  in  it ;  the  control  of  all  public  ways, 
places,  and  streets  ;  the  improvement  of  streets,  walks, 
canals,  and  rivers  within  the  corporate  limits ;  the  pro- 
vision of  hospitals,  markets,  pounds,  jails,  and  suitable 
buildings  for  the  accommodation  of  the  local  government ; 
the  construction  of  public  wharves  and  bridges  ;  the  preven- 
tion of  fire  and  flood  ;  the  abatement  of  public  nuisances  ; 
the  provision  of  adequate  supplies  of  water,  gas,  and  sew- 
erage facilities;^  the  erection  and  regulation  of  public  cera- 

(1)  Potter  Corp.  376. 

(2)  Cabot  V.  Rome,  28  Ga.  50;  Wells  r.  Atlanta,  43  Ga.  07;  Livings- 
ton  V.  Pippin,  31  Ala.  542  ;  Hale  v.  Houghton,  8  Mich.  458 ;  Memphis  v 
Water-works  Co.,  5  Heisk.  495. 


§  28.]  CONSTUCTIOX    OF    COMMON   PHRASES.  29 

eterios  ;^  and  the  regulation  of  all  trades,  occupations,  and 
businesses,  that  might  by  improper  exercise  injure  the 
health  and  morals  of  the  inhabitants.^ 

§  27.  General  welfare. — Care  must  be  taken  not  to  con- 
found the  term  '■^general  welfare  "  as  used  by  many  courts  with 
other  terms  of  narrower  scope.  General  welfare  is  merely 
synonymous  with  corporate  purposes.  Such  expressions  as 
"  peace  and  good  order  "  and  "  peace  and  good  govern- 
ment "  are  much  more  restricted.  Many  things  are  essen- 
tial to  the  public  welfare  which  belong  neither  to  the 
preservation  of  peace  and  order  nor  to  the  exercise  of  good 
government.  The  general  welfare  clause  does  not  allow 
local  regulation  of  acts,  such  as  assaults,  riots,  libel,  slander, 
and  forcible  entry,  which  are  within  the  cognizance  of  the 
statutes  of  the  state.^  J^or  does  it  warrant  any  kind  of 
local  taxation.*  General  welfare  extends,  among  other 
things,  to  preventing  the  obstruction  of  streets;^  to  regu- 
lating the  hours  of  closing  places  where  liquors  are  sold  f 
and  to  prohibiting  the  carrying  of  concealed  weapons.^ 

§  28.  Peace  and  good  government. — Under  power  to 
pass  ordinances  "  to  'preserve  the  peace  and  good  order  or  • 
good  government'^  of  the  community,  any  reasonable  pro- 
vision for  the  health,  security,  comfort,  and  protection  of 
the  citizens  may  be  adopted.*  Among  other  things  that 
have  been  held  lawful  under  such  an  expression  of  power 
are  the  prohibition  of  the  use  of  obscene  or  profane 
language   in   public   places ;'    the   prohibition   of    bawdy 

(1)  Charleston  v.  Church,  4  Strobh.  L.  306. 

(2)  Nichol  V.  Nashville,  9  Humph.  252;  sale  of  liquors,  Heisembrittle 
V.  Charleston,  2  McMullen,  233;  Charleston  v.  Ahrens,  4  Strobh.  L.  241. 

(3)  Commonwealth  v.  Turner,  1  Cush.  493. 

(4)  Dill.  Mun.  Corp.,  §  764. 

(5)  Janesville  v.  Railroad  Co.,  7  Wis.  484. 

(6)  State  V.  Freeman,  38  N.  H.  426.  9 

(7)  St.  Louis  V.  Vert.,  84  Mo.  204. 

(8)  Paxson  v.  Sweet,  13  N.  J.  L.  196.     See  page  205. 

(9)  Ex  parte  Slattery,  3  Ark.  484 ;  Ex  parte  Delaney,  43  Cal.  478. 


30  MUNICIPAL    POLICE    ORDINANCES.  [§  29. 

houses  ;^  the  abatement  of  nuisances  ;-  the  requiring  sales 
of  coal  to  be  made  by  established  weights  and  measures 
and  the  imposition  of  a  fee  of  five  cents  per  load  for  the 
remuneration  of  the  corporate  authorities,  upon  whom 
rests  the  duty  of  enforcing  the  ordinance  f  requiring  the 
owners  of  buildings  to  which  the  public  has  access  to 
properly  guard  their  elevator  shafts  ;*  prohibiting  the 
keeping  in  stock  of  certain  kinds  of  explosive  fireworks  ;^ 
the  provision  of  facilities  for  the  education  of  youth  and 
for  the  care  of  the  poor  within  the  limits  of  the  corpora- 
tion f  punishing  the  public  commission  of  such  acts  as  are 
otherwise  covered  by  the  penal  laws  of  the  state  f  punish- 
ing willful  trespasses  upon  and  injury  to  property;*  pro- 
vision for  the  arrest  and  punishment  of  persons  found 
publicly  intoxicated  f  the  establishment  of  an  adequate 
police  force."* 

§  29.  Other  general  expressions.— The  term  "  public 
peace,"  alone  is  not  synonj'mous  with  "public  policy." 
The  subjects  regulated  under  it  must  be  such  as  directly 
effect  the  peace,  and  do  not  include  things  merely  germane 
to  peace."  Thus,  it  does  not  authorize  the  prohibition  of 
billiard  saloons.^  It  has  even  been  held  that  the  passage 
of  Sunday  ordinances  as  necessary  to  the  peace  of  the 
community  is  unlawful.'^  A  simple  power  of  *'  police  " 
regulation  does  not  authorize  the  imposition  of  a  license 
fee  on  the  use  of  wagons.**   Power  to  preserve  "  the  order, 

(1)  State  V.  Williams,  11  S.  C.  288. 

(2)  Paxson  v.  Sweet,  13  N.  J.  L.  196. 

(3)  O'Maley  v.  Freeport,  96  Pa.  St.  24. 

(4)  Mayor  v.  Williams,  4  E.  D.  Smith,  516. 

(5)  Jones  V.  Insurance  Co.,  2  Daly,  307. 

(6)  State  V.  McDonough,  8  La.  Ann.  171. 

(7)  State  V.  Bruckhauser,  2(3  Minn.  301. 

(8)  Brownville  v.  Cook,  4  Neb.  101. 

(9)  Bloomfield  v.  Trimble,  54  la.  399. 

(10)  State  V.  Sims,  16  S.  C.  486. 

(11)  Cornwallis  v.  Carlile,  10  Oreg.  139. 

(12)  Breninger  v.  Belvidere,  44  N.  J.  L.  350. 

(13)  Cornwallis  v.  Carlile,  supra. 

(14)  Knox  City  v.  Thompson,  19  Mo.  App.  523. 


§  30.]  CONSTRUCTION    OF    COMMON   PHRASES.  .     31 

health,  and  quiet,"  extends  to  the  erection  and  mainte- 
nance of  guard-houses,^  and  to  the  abatement  of  nuisances 
and  to  the  imposition  of  penalties  for  their  maintenance.^ 
Under  power  to  pass  ordinances  "  for  the  security,  welfare, 
and  convenience  "  of  the  corporation,  an  ordinance  is  valid 
which  regulates  the  storage  and  traffic  in  gunpowder 
within  the  city  limits.^  The  "  promotion  of  trade,  indus- 
try, and  happiness  "  includes  educational  purposes.*  But 
local  taxation  for  the  aid  of  railroads  is  not  "  for  the  bene- 
fit and  advantage"  of  the  municipality  in  the  sense  given 
to  those  words  m  grants  of  local  power.'  Under  general 
powers  of  any  kind  the  streets  may  be  kept  free  from  ob- 
structions.® Under  a  power  to  enact  ordinances  "  as  at 
common  law,"  a  city  may  provide  for  the  protection  of  its 
streets  and  lake  front  by  a  suitable  breakwater.^ 

No  absolute  rules  can  be  laid  down  by  which  the  con- 
struction of  these  various  general  expressions  of  power  is 
to  be  governed.  Rights  will,  however,  rarely  be  denied 
under  them,  which  are  essential  to  the  attainment  of  the 
purposes  of  local  government,  and  they  will  be  construed 
to  include  all  powers  which  are  usually  exercised  by  cor- 
porations in  furtherance  of  police  regulation,  unless  re- 
stricted in  their  operation  by  more  definite  and  detailed 
grants  in  other  parts  of  the  organic  law, 

§30.  "To  regulate." — "■To  regulate''  is  the  expression 
most  frequently  used  to  define  the  degree  of  power  that  it 
shall  be  lawful  to  exercise  over  the  subject  under  local 
supervision.  It  means  to  govern,  to  control,  to  subject 
to  governing  laws,  and,  in  this  connection,  the  determina- 
tion and  enforcement  of  the  condition  and  restriction 
under  which  certain  things  may  be  done,  or  certain  public 

(1)  McLin  V.  Newburn,  70  X.  Car.  12. 

(2)  Rochester  V.  Collins,  12  Barb.  559. 

(3)  Williams  v.  Augusta,  4  Ga.  509. 

(4)  Vidal  V.  Girard,  2  How.  127. 

(5)  McDermond  v.  Kennedy,  Brightly,  332. 

(6)  Janesville  v.  Railroad  Co.,  7  Wis.  484. 

(7)  Miller  v.  Milwaukee,  14  Wis.  642. 


32  MUNICIPAL    POLICE    ORDINANCES.  [§30. 

or  private  rights  exercised.  The  word  itself  implies  that 
the  act  controlled  is  lawful,  but  that  certain  restrictions- 
are  necess^arj  to  preserve  the  public  free  from  harm.  It 
can  never  be  extended  to  include  prohibition,  for  the  very 
essence  of  regulation  is  the  existence  of  something  to  be 
regulated.^ 

It  is  held  that  the  power  of  regulating  slaughter-houses 
implies  power  to  fix  their  location,  to  direct  the  manner  of 
their  use  .and  to  prohibit  their  continuance  whenever 
necessary  to  the  welfare  of  the  community.  The  only 
thing  that  the  power  recognizes  as  unavoidable  is  their 
right  to  exist,  but  the  corporation  may  say  how,  when,  and 
where.^ 

Under  a  power  to  regulate  certain  trades  or  occupations 
their  exercise  may  be  restricted  to  certain  places,  and  re- 
strictions may  be  laid  on  the  manner  of  conducting  them.*^ 
Power  to  regulate  does  not  imply  power  to  tax.*  So,  an  or- 
dinance assessing  a  certain  amount  for  the  privilege  of 
building  vaults  under  the  street  is  not  sustained  by  power 
to  regulate  vaults.^  But  this  power  authorizes  ordinances 
which  prescribe  the  hours  of  closing  places  of  business 
whenever  the  business  is  of  a  nature  to  need  safeguards.^ 

The  power  to  regulate  includes  power  to  restrain,  so 
long  as  the  restraint  imposed  is  reasonable.  The  restraint 
must  not  so  confine  the  exercise  of  any  occupation  as  to 
amount  to  a  prohibition,^  Xor  may  the  regulation  virtually 
effect  the  creation  of  a  monopoly.  Thus  power  to  regu- 
late the  streets  does  not  authorize  a  grant  to  a  street  rail- 

(1)  Heise  v.  Columbus,  6  Rich.  4u4;  Sweet  v.  Wabash,  41  Ind.  7;. 
McConvill  V.  Jersey  City,  39  N.  J.  L.  38;  Bronson  v.  Oberlin,  41  O.  S. 
476;  .\ustin  v.  Murray,  16  Pick.  12;  Duckwall  v.  New  Albany,  I'S  Ind. 
283;  Shallcross  r  JeflFersonville,  26.  Ind.  193. 

(2)  Cronin  v.  People,  82  N.  Y.  318. 

(3)  Livery  stables.  Stale  v.  Beattie,  16  Mo.  App.  131 ;  liquor  traffic, 
In  re  Wilson,  32  Minn.  144. 

(4)  Desty  on  Taxation,  1380:  Mayor  v.  Beasley,  1  ITumph.  232. 

(5)  State  c.  Iloboken,  33  N.   f.  280. 

(6)  Schwuchow  v.  Chicago,  CS  111.  444.     . 

(7)  Piqua  V.  Zimmerlin,  35  O.  S.  507 ;  Thomas  v.  Mt  Vernon,  9  Ohio^ 
290. 


§  31.]  COx\STRUCTION    OF   COMMON   PHRASES.  33 

road  company  of  the  exclusive  right  to  lay  tracks  and  to 
operate  its  cars  in  a  particular  street.^ 

The  means  adopted  to  effect  the  regulation  are  imma- 
terial so  long  as  ihey  do  not  violate  any  constitutional  or 
statutory  provision,  or  result  in  marked  injustice  to  those 
who  bear  the  burden  of  the  regulation.  Their  validity  is 
measured  by  their  effect,  and  their  choice  lies  within  the 
sole  discretion  of  the  council.  The  occupation  or  trade 
may  be  limited  to  certain  localities  whenever  its  neighbor- 
hood is  offensive.  It  may  be  limited  to  certain  hours  of 
the  day  whenever  its  nature  is  such  that  it  needs  super- 
vision, or  irresponsible  persons  can  be  prevented  from  its 
pursuit  by  th«5  exaction  of  a  license  fee.^  Some  courts 
deny  the  right  to  license  unless  specifically  granted.' 

§  31.  To  suppress  and  restrain. — Power  "  to  suppress 
and  restrain "  imports  more  than  simple  regulation  and 
little  less  than  total  prohibition.  It  may  be  exercised  in 
any  degree  and  through  any  reasonable  means.  Thus, 
under  power  to  suppress  and  restrain  disorderly  houses,  an 
ordinance  may  declare  them  to  be  nuisances  and  prescribe 
definite  punishment  for  those  who  conduct  them.* 

As  a  general  rule  restraint  may  be  exercised  through  a 
license  system.'  It  is  noticeable  that  the  courts  of  Alabama 
hold  the  contrary.  They  do  so  in  adherence  to  the  well- 
established    legislative    policy   of    that   state    against   all 

(1)  Davis  V.  Mayor,  14  N.  Y.  506;  post,  §  132. 

(2)  In  re  Wan  Yin,  22  Fed.  Rep.  701 ;  Russellville  v.  White,  41  Ark. 
485 ;  Fort  Smith  v.  Ayers,  43  Ark.  82. 

(3)  Burlington  v.  Baumgartner,  42  la.  673;  In  re  Schneider,  11  Oreg. 
288. 

(4)  Centerville  v.  Miller,  57  la.  56 ;  s.  c,  57  la.  225,  limiting  Charitan 
V.  Barber,  54  a.  360,  where  punishment  was  held  illegal ;  and  Mount 
Pleasant  ?/.  Breeze,  11  la.  399. 

(5)  Burlington  v.  Lawrence,  42  la.  681;  (bowling  alleys)  Smith  v. 
Madison,  7  Ind.  86;  (hawking  and  peddling)  Huntington  v.  Cheesbro, 
57  Ind.  74;  (sale  of  liquors)  Mt.  Carmel  v.  Wabash,  50  111.  69;  (liquors) 
Franklin  v.  Westfall,*  27  Kan.  614.  Contra  (liquors),  Keokuk  v.  Dres- 
•ell,  47  la.  597;  Schuster  v.  State,  48  Ala.  202. 

3 


34  MUNICIPAL    POLICE    ORDINANCES.  [§  33. 

measures  that  facilitate  the  traffic  in  liquors,  and  particu- 
larly against  any  license  system.  Aside  from  any  consid- 
eration of  state  policy,  the  power  under  discussion  plainly 
implies  the  right  to  license  as  a  proper  mode  of  restraint. 

§  32.  Miscellaneous  expressions. — Under  power  to 
abate  and  remove  nuisances  it  is  unlawful  to  impose  pen- 
alties for  their  erection,  or  to  attempt  by  ordinance  to  pre- 
vent their  creation.  The  law  presumes  that  every  act  is 
lawful  and  proper  and  without  express  authority,  citizens 
can  not  be  hampered  by  restrictions,  until  the  results  of 
their  undertakings  are  proven  to  be  injurious.^ 

Power  "  to  establish  "  certain  works  of  public  usefulness 
receives  a  broad  construction.  It  is  held  to  warrant  meas- 
ures, not  only  to  establish,  but  also  to  regulate  and  alter 
the  public  improvement  after  its  establishment.  So,  under 
power  to  establish  pounds,  penalties  may  be  provided  for 
breaking  them  open;^  and  a  similar  power  over  markets 
authorizes  their  removal  or  abandonment  to  meet  the  needs 
of  a  growing  city.^ 

§  33.  General  rules  of  construction. — In  construing 
any  of  these  general  terms  the  ordinary  and  accepted 
definition  of  the  words  used  should  be  the  first  guide.  And 
further,  the  rule  that  a  grant  of  power  includes  all  degrees 
of  that  power  is  applicable,  unless  some  declared  policy  of 
the  state  indicates  that  the  power  is  mandatory  rather  than 
permissive,  in  which  case  it  must  be  exercised  to  its  full  ex- 
tent, if  at  all.  The  presumption  is  that  the  grant  of  a 
power  expresses  the  limit  of  the  corporate  discretion,  and 
that  any  exercise  of  the  power  falling  short  of  or  not  ex- 
ceeding that  limit  is  valid. 

(1)  Kochesterv.  Coning,  12  Barb.  569. 

(2)  Smith  V.  Emporia,  27  Kan.  528. 

(3)  Gall  V.  Cincinnati,  1»  0.  S.  663. 


COUNCIL    PROCEEDINGS.  35 


'  CHAPTER  V. 

PASSAGE  OF  ORDINANCES. 

Part  I. 

COUNCIL   PROCEEDINGS. 

§  34.  Necessity  of  formal  enactment. 

§  35.  Statutory  directions  are  mandatory. 

§  36.  Council  de  facto  can  not  act. 

§  37.  Meetings  of  the  council. 

§  38.  Adjourned  and  special  meetings. 

§  39.  Joint  action  of  bi-cameral  council. 

§  40.  Quorum  in  joint  session. 

§  41.  What  constitutes  a  quorum. 

§  42.  Holdin/gs  under  statutory  provisions. 

§  43.  Majority  of  quorum  sufficient. 

§  44.  When  the  mayor  may  vote. 

§  45.  Other  charter  provisions. 

§  46.  When  a  vote  may  be  reconsidered. 

§  47.  Readings. 

§  48.  Signature  of  clerk  of  council. 

§  49.  Signature  of  the  mayor. 

§  50.  The  mayor's  approval. 

§  51.  How  signified. 

§  52.  Publication. 

§  53.  Construction  of  provisions  regulating  the  time  of  publication. 

§  54.  The  newspaper  in  which  publication  may  be  made. 

§  55.  Form  of  the  notice  published. 

§  56.  Record  of  the  ordinance. 

g  57.  What  record  must  contain. 

§  58.  Record  of  votes. 

§  59.  Informalities  subsequently  cured. 

§  60.  Repeal. 

§  60a. Must  be  by  the  council. 

§  61.   Form  of  the  repealing  act. 

§  62.  Repeal  by  the  legislature  by  implication. 

§  63.  Implied  repeal  by  passage  of  inconsistent  ordinance. 

§  64.  Amendments. 

§  65.  Summary. 

§  66.  Saving  clause  in  subsequent  ordinance. 

§  67.  Effect  of  a  repeal  on  vested  rights. 


36  MUNICIPAL    POLICE    ORDINANCES.  [§  35. 


Part  IL 

§  68.  Form  of  ordinances. 

§  69.  Constituent  parts. 

§  70.  Ordinances  like  resolutions  in  form. 

§  71.  The  title. 

§  72.  The  introduction. 

§  73.  Ordinance  need  not  recite  authority, 

§  74.  Scope  of  the  ordinance. 

§  75.  Reference  to  existing  ordinances. 

§  76.  Time  of  going  into  effect. 

111.  Penalty. 

§  78.  Definiteness  of  expression. 

§  79.  Definiteness  as  to  the  penalty. 

§  80.  License  ordinances. 

§  81.  Ordinances  against  nuisances. 

§  82.  Council  can  not  bind  its  successors. 

§  34.  Necessity  of  a  formal  enactment. — The  powers 
granted  to  municipal  corporations  are  not  self-executing. 
They  require  formal  exercise  by  a  legislative  enactment  of 
the  municipal  council,  or  governing  body,  before  the  min- 
isterial officers  can  proceed  to  enforce  them.^  Munici- 
pal corporations  can  not  act  at  all  except  through  the 
bodies  in  which  the  law  vests  their  legislative  functions.^ 
And  the  legislative  department  can  only  act  through  the 
medium  of  a  formal  expression  of  its  will,  whether  in  the 
form  of  an  ordinance,  resolution,  or  mandate.^  This  rule 
applies  to  police  and  contractual  powers  alike.* 

§  35.  Statutory  directions  are  mandatory. — "  It  is  the 
policy  of  our  jurisprudence  to  require  of  municipal  corpo- 
rations a  strict  observance  of  their  powers,  and  that  in  the 
exercise  of  these  powers  they  should  observe  the  forms  the 
law  has  directed.  All  tribunals  of  special  and  limited 
jurisdiction  must  show  the  authority  under  which  they 

(1)  Ante,  I  3;  Lake  v.  Aberdeen,  57  Miss.  260. 

(2)  Saxton  v.  St.  Joseph,  60  Mo.  153;  Saxton  v.  Beach,  50  Mo.  488. 

(3)  Day  V.  Jersey  City,  ]  9  N.  J.  Eq.  412;  Creighton  v.  Manson,  27 
Cal.  613. 

(4)  Terre  Haute  v.  Lake,  43  Ind.  480;  Pettis  v.  Johnson,  56  Tnd.  130, 
151. 


§  36.]  COUNCIL   PROCEEDINGS.  37 

act,  and  act  in  the  manner  pointed  out."^  Statutory  di- 
rections as  to  the  mode  of  procedure  to  be  followed  in  the 
enactment  of  ordinances  are  mandatory  and  must  be 
strictly  observed.  They  are  conditions  precedent  and  if 
omitted  the  ordinance  is  ab  initio  void/  The  statutory 
mode  becomes  the  measure  of  the  power,  and  all  enact- 
ments must  be  passed  in  strict  subordination  to  the  con- 
ditions and  directions  prescribed.^  The  compliance  must 
be  literal,  and  not  merely  substantial.*  When  a  power  is 
granted  to  be  exercised  in  a  particular  manner,  or  through 
specified  means,  there  is  an  implied  prohibition  upon  the 
exercise  in  a  diflerent  manner,  or  by  different  means,®  and 
the  corporation  can  not  so  legislate  as  to  alter  the  mode  of 
the  erxercise  of  that  power,  or  to  change  the  persons  who 
may  exercise  it.^ 

Conditions  precedent  to  the  passage  of  ordinances  are 
such  as  relate  to  the  mode  of  procedure  in  the  common 
council,  or  to  any  thing  that  it  would  be  necessary  to 
record  in  their  journal.  The  journal  should  show  com- 
pliance with  each  statutory  direction.^  It  might  be  that 
some  of  the  prescribed  formalities  seem  wholly  useless,  or 
that  omission  to  observe  them  could  not  possibly  prejudice 
the  rights  of  any  one;  but  the  obligation  to  follow  them 
would  be  just  as  imperative.  All  exercise  of  discrimina- 
tion is  precluded  between  expressions  of  the  legislative 
will. 

§  36.  Council  de  facto  can  not  act. — It  is  equally 
important  as  a  condition  precedent  to  the  enactment  of 

(1)  Wright,  J  ,  in  Bloom  v.  Xenia,  32  0.  S.  461,  466. 

(2)  State  V.  Bell,  34  0.  S.  194;  Bloom  v.  Xer.ia,  supra;  Welker  w. 
Potter,  18  0.  S.  85;  Blanchard  v.  Bissell,  U  0.  S.  101;  Herzo  v.  San 
Francisco,  33  Cal.  134;  State  v.  Newark,  25  N.  J.  399;  Elizabethtown 
V.  Lester,  23  111.  90;  Ewbanks  v.  Ashley,  36  111.  177;  Barnettf.  Newark, 
28  111.  62;  Danville  v.  Shelton,  76  Va.  325. 

(3)  McCoy  V.  Briant,  53  Cal.  250 ;  Smith  v.  Buffalo,  1  Sheldon,  493. 

(4)  State  v.  Newark,  25  N.  J.  399. 

(5)  Des  Moines  v.  Gilchrist,  67  Iowa,  211. 

(6)  Brewster  i;.  Hartley,  37  Cal.  15. 
C7)  Moore  v.  Mayor,  73  N.  Y.  238. 


38  MUXICIPAL    POLICE    ORDINANCES.  [§  37, 

police  ordinances  that  the  corporate  council  should  have 
been  lawfully  created.  Acquiescence  on  the  part  of  those 
affected  by  contractual  ordinances  until  rights  have  vested 
may  estop  them  from  afterward  claiming  thaf  the  council 
was  improperly  constituted;  but  the  principle  is  not  appli- 
cable to  ordinances  of  a  police  or  penal  nature.  In  order  to 
enact  valid  police  ordinances  the  members  of  the  council, 
or  at  least  those  who  voted  in  favor  of  its  passage,  must 
have  been  duly  elected  and  qualified,  although  it  is  appre- 
hended that  an  ordinance  passed  by  more  than  the  requisite 
number  of  votes  would  not  be  void  if  one  of  those  who 
voted  for  it  should  prove  to  have  been  disqualified  to  act. 
Where  the  council  is  the  judge  of  the  election  and  qualifi- 
cation of  its  own  members,  its  decision  when  once  invoked 
is  determinate.^  Everv  provision  of  the  statute  re^ulatins: 
the  election  of  councilmen  is  material,  and  must  be  ful- 
filled; thus,  if  the  official  inspector  of  elections  fails  to  file 
a  certificate  of  the  election,  as  the  law  requires,  those 
elected  can  not  enact  ordinances.^ 

§  37.  Meetings  of  the  council.— The  times  of  holding 
council  meetings  is  usually  fixed  by  statute,  but,  if  not,  it 
may  be  regulated  by  the  council  itself  in  any  manner  that 
will  charge  its  members  with  due  notice.  At  the  first 
meeting  of  a  newly  elected  council  a  majority  present  can 
effect  an  organization,  and  then  proceed  to  the  transaction 
of  any  business,  regardless  of  the  fact  that  some  are  absent, 
or  even  that  the  absentees  have  not  yet  qualified  as  mem- 
bers. The  full  power  given  to  the  council  may  be  exercised 
at  its  first  meeting.' 

When  the  charter  or  statute  declares  that  stated  meet- 
ings shall  be  held,  but  makes  no  provision  for  fixing  the 
time,  the  council  may  exercise  its  own  discretion,  and  in 

(1)  Kendell  v.  Camden,  47  N.  J.  64;  Hadley  v.  Mayor,  33  N.  Y.  603; 
Morgan  v.  Quackenbosh,  22  Barb.  78.  Contra,  quo  warranto  still  lies, 
People  V.  Bird,  20  111.  App.  508. 

(2)  Dinwindie  v.  Rushville,  37  Ind.  66. 

(3)  Oakland  v.  Carpentier,  13  Cal.  540. 


S  38.]  COUNCIL    PROCEEDINGS.  39 

any  manner  it  chooses.  If  the  times  have  been  once  fixed 
by  a  formal  resolution,  approved  by  the  mayor  and  pub- 
lished, the  council  is  not  precluded  thereby  from  changing 
the  dates  of  meetings,  but  may  do  so  by  simple  motion.^ 

§  38.  Adjourned  and  special  meetings.— There  is  con- 
siderable conflict  of  authority  as  to  the  validity  of  acts 
performed  at  adjourned  and  special  meetings.  Technically, 
the  term  meeting,  used  in  the  corporate  charter  or  organic 
law,  does  not  include  adjourned  meetings.^'  A  distinction 
seems  to  have  been  made  between  special  and  adjourned 
meetings.  If  the  statute  or  charter  provides  for  the  trans- 
action of  specified  business  at  a  stated  meeting,  it  is  doubt- 
ful whether  those  present  at  that  meeting  can  appoint  a 
special  meeting  for  the  transaction  of  that  business  at  a  later 
day;3  but  all  difficulty  may  be  avoided  by  simply  a^jowm% 
the  stated  or  regular  meeting.  Members  of  the  council  are 
supposed  to  attend  each  regular  meeting,  and  they  are 
charged  with  notice  of  all  the  business  there  transacted. 
They  are  thus  charged  with  notice  of  the  time  and  place  of 
the  adjournment  of  that  meeting,  if  one  is  had,  and  of  the 
unfinished  business  to  be  taken  up  at  the  adjourned  meet- 
ing.* If  members  are  absent  from  a  regular  meeting,  at 
which  an  election  was  postponed  to  another  day,  they  can 
not  attack  the  validity  of  the  election  when  held,  on  the 
ground  that  they  were  not  notified.^  And  the  adjourn- 
ment could  be  voted  by  a  minority  of  the  council  in  the 
absence  of  a  quorum. 

If  it  is  true  that  councilmen  are  charged  with  notice  of 
all  that  is  done  at  regular  meetings,  they  have  notice  of  any 
adjourned  meeting,  and  it  seems  that  adjourned  meetings 
should  stand  on  an  equal  footing  with  the  regular  meetings. 
It  is  certain  that  unfinished  business  may  be  completed, 

(1)  State  v.  Kantler,  33  Minn.  69. 

(2)  Staates  v.  Washington,  44  N.  J.  605. 

(3)  People  V.  Batchelor,  22  N.  Y.  128. 

(4)  People  V.  Batchelor,  22  N.  Y.  128. 

(5)  Kimball  v.  Marshall,  44  N.  H.  465. 


40  MUNICIPAL    POLICE    ORDINANCES.  [§  39. 

and  the  reasonable  rule  is  that  anj  business  may  be  trans- 
acted that  could  have  been  brought  up  at  the  preceding 
regular  meeting.^ 

When  special  or  adjourned  meetings  are  held  by  virtue 
of  statutory  authority,  an  ordinance  is  void  that  is  enacted 
at  a  special  meeting  held  after  the  repeal  of  the  empower- 
ing statute.^  A  statutory  provision  is  mandatory  which 
directs  that  no  business  shall  be  transacted  at  a  special 
meeting  called  by  the  ma3^or,  except  such  as  is  mentioned 
in  his  proclamation.^ 

§  39.  Joint  action  of  bi-cameral  council. — In  munic- 
ipalites  that  have  adopted  the  bi-cameral  sj'stem  of  local 
government,  ordinances  must  be  duly  passed  by  both 
branches  of  the  council  before  they  attain  validity.  The 
council  consists  of  both  parts.  Enactments  must  receive 
the  sanction  of  the  two  branches  that  hold  office  at  the 
same  time.  An  ordinance  that  passed  one  branch  just 
before  the  expiration  of  its  term  of  office,  or  of  the  term 
of  office  of  a  part  of  its  members,  can  not  be  taken  up  by 
the  other  branch,  newly  elected,  and  passed  as  unfinished 
business.  It  can  not  be  said  to  have  been  passed  by  the 
council.* 

In  order  to  have  valid  joint  action  there  must  be  a 
meeting  of  the  minds  of  the  two  branches,  and  there  can 
be  none  such  between  two  bodies  which  have  had  no  con- 
temporaneous existence.  In  a  case  where  concurrent 
action  of  both  branches  was  necessary  to  elect  a  city 
solicitor,  the  lower  house  elected  A.,  ancl  sent  a  report  of 
their  vote  to  the  upper  house.  The  latter  refused  to  con- 
cur and  adjourned.  At  their  next  meeting  the  upper 
house  in  its  turn  elected  A.,  and  reported  to  the  lower 
house.     The  official  notices  of  the  refusal  to  concur  and  of 

(1)  New  Orleans  r.  Brooks,  36  La.  Ann.  641 ;  Ex  parte  Wolf,  14  Neb.  24. 

(2)  County  of  San  Louis  Obispo  v.  Hendricks,  1 1  Pac.  Rep.  682. 

(3)  St.  Louis  V.  Withans,  16  Mo.  App.  247;  Allen  v.  Rogers,  20  Mo. 
App.  290. 

(4)  Wetmore  V.  Story,  22  Barb.  414;  Beekman's  Case,  11  Abb.  Pr. 
164;  s.  c,  19  How.  Pr.  518. 


§  42.]  COUNCIL   PROCEEDINGS.  41 

the  subsequent  election '  reached  the  lower  house  at  the 
same  time,  which  then  in  its  turn  refused  to  concur  in  A.'s 
election,  but  elected  B.,  which  last  election  received  the 
ratification  of  the  upper  house.  B.  was  adjudged  elected, 
A  not  having  received  the  concurrent  vote  of  both  houses.^ 

§  40.  Quorum  in  joint,  session. — Where  the  two 
branches  of  the  council  meet  in  joint  session,  they  do  not 
merely  vote  together  as  two  separate  bodies,  but  constitute 
one  assembly,  and  a  quorum  for  the  transaction  of  business 
is  obtained,  if  a  majority  of  the  total  number  of  members 
in  both  houses  are  present.^  It  is,  however,  held  in  New 
Jersey,  in  the  absence  of  any  statutory  regulation,  that  a 
majority  of  each  body  must  be  present.^ 

§  41.  What  constitutes  a  quorum. — Any  power 
vested  in  the  corporate  council  may  be  lawfully  exercised 
by  a  majority  of  its  members,  unless  otherwise  prescribed 
by  law.*  The  state  may  make  any  other  provision  that  it 
sees  fit,  but  if  it  is  silent  the  common-law  rule  prevails. 
The  council  has  no  power  to  declare  that  more  than  a 
majority  shall  be  necessary.^ 

§  42.  Holdings  under  statutory  provisions. — Where 
the  statute  provided  in  terms  that  a  majority  of  those 
elected  to  the  council  should  constitute  a  quorum,  and 
eight  members  were  elected,  of  whom  one  was  an  alien 
and  therefore  incapable  of  acting,  it  was  held  that  five 
qualified  members  were  still  necessary  to  the  quorum, 
it  not  being  the  legislative  intent  to  throw  special  stress 

(1)  Saunders  v.  Lawrence,  141  Mass.  380. 

(2)  Beck  V  Hanscom,  29  N.  H.  213;  Kimball  v.  Marshall,  44  N.  H. 
465,  468.     And  in  England,  see  King  v.  Williams,  2  M.  &  S.  141. 

(3)  State  V.  Patterson,  35  N.  J.  190;  see  page  194. 

(4)  Covington  V.  Boyle,  6  Bush,  204;  Heiskell  v.  Baltimore,  65  Md. 
125;  s.  c,  20  Am.  L.  Rev.  640;  States.  Farr,  47  N.  J.  208;  Barnert  v. 
Paterson,  48  N.  J.  395. 

(5)  Heiskell  v.  Baltimore,  supra,  note  4. 


42  MUNICIPAL    POLICE    ORDINANCES.  [§  4o. 

on  the  word  elected}  The  same  coustructioii  was  put 
upon  the  same  statute  where  one  of  the  eight  members 
elect  resigned,  and  an  ordinance  was  declared  void  that 
had  been  passed  by  a  vote  of  four  to  three.^  The  intent 
is  always  that  the  measure  shall  receive  the  requisite 
majority  or  proportion  of  the  total  number  that  constitute 
the  council  when  tilled. 

If  the  statute  provides  that  no  councilman  shall  vote 
who  is  personally,  that  is,  pecuniarily,  interested  in  the 
proposed  measure,  the  vote  thus  disqualified  must  not  be 
counted.  In  a  council  of  nine  members,  requiring  two- 
thirds  to  pass  a  certain  ordinance,  the  votes  of  six,  one 
being  thus  disqualified,  are  not  suflicient.^  No  vote  can  be 
thrown  out  for  this  reason*  except  in  pursuance  of  express 
provision  of  the  statute. 

§  43.  Majority  of  quorum  suflacient. — When  a  quorum 
is  obtained  the  body  may  then  proceed  to  the 'transaction 
of  business,  and  unless  contrary  to  the  express  provision 
of  the  organic  law  of  the  corporation,  an  ordinance  is 
properly  passed  for  which  a  majority  of  the  quorum  have 
voted.*  This  is  strictly  in  conformity  to  the  rule  observed 
in  political  elections,  a  majority  of  those  voting  deciding 
the  issue.^ 

Those  who  are  present  and  who  help  to  make  up  the 
quorum  are  expected  to  vote  on  every  question,  and  their 
presence  alone  is  enough  to  make  the  vote  decisive  and 
binding,  whether  they  actually  vote  or  not.  The  objects 
of  legislation  can  not  be  defeated  by  the  refusal  of  any  one 
to  vote,  when  present.  If  eighteen  are  present  and  nine 
vote,  all  in  the  aflirmative,  the  measure   is   carried,  the 

(1)  Saterlee  r.  San  Francisco,  23  Cal.  314. 

(2)  San  Francisco  v.  Hazen,  5  Cal.  169;  MoCracken  v.  San  Francisco, 
16  Cal.  .391 ;  Pimental  v.  San  Francisco,  21  Cal.  351,  362. 

(3)  Wheel  Company  v.  Burnham,  GO  Iowa,  493. 

(4)  State  V.  Farr,  47  N".  J.  208;  State  v.  Chapman,  44  Conn.  1;  Bar-, 
nert  v.  Paterson.  48  N.  J.  395.  • 

(5)  Erwin  v.  Township.  21  U.  C.  C.  P.  330. 


§    45.]  COUNCIL    PROCEEDINGS.  43 

refusal  of  the  other  nine  to  vote  being  construed  as  a  vote 
in  the  affirmative  so  far  as  any  construction  is  necessary.^ 
As  was  said  by  Sheldon,  J.,  in  Launtz  v.  People,  113  111. 
137,  quoting  from  Wilcock  on  Corporations:  "After  an 
election  has  been  properly  proposed,  whoever  has  a  ma- 
jority of  those  who  vote,  the  assembly  being  sufficient,  is 
elected,  although  a  majority  of  the  entire  assembly  alto- 
gether abstain  from  voting,  because  their  presence  suffices 
to  constitute  the  elective  body;  and  if  they  neglect  to 
vote  it  is  their  own  fault,  and  shall  not  invalidate  the  act 
of  the  others,  but  be  construed  an  assent  to  the  deter- 
mination of  the  majority  of  those  v?ho  do  vote ;  and  such 
an  election  is  valid,  though  the  majority  of  those  whose 
presence  is  necessary  to  the  assembly  protest  against  any 
election  at  that  time,  or  even  the  election  of  the  individual 
who  has  the  majority  of  the  votes/' 

§  44.  When  the  mayor  may  vote. — Although  it  was 
the  rule  of  the  common  law  that  the  mayor  has  no  casting 
vote  except  as  given  by  charter  or  founded  on  custom,^  it 
is  usual  now  to  allow  the  mayor,  like  the  presiding  officer 
of  any  other  legislative  body,  to  vote  in  case  of  an  equal 
division  of  the  council.  Recent  decisions  are  very  favor- 
able to  the  exercise  of  the  right.  Thus,  where  the  charter 
gave  the  mayor  a  right  to  vote  in  case  of  tie,  and  of  the 
eight  councilmen  present  four  voted  and  four  refused  to 
vote,  the  mayor  considered  the  refusal  as  a  negative  vote, 
and  voted  with  the  other  four,  as  the  court  said,  lawfully.^ 
If  the  mayor  has  the  power  to  "  appoint  by  and  with  the 
consent  of  the  council,"  and  the  council  divides  evenly  upon 
a  motion  to  approve  an  appointment,  the  mayor  may  decide 
in  favor  of  his  nomination  by  casting  his  vote.* 

§  45.  Other  charter  provisions. — Provisions  author- 
izing the  suspension  of  the  rules  for  any  purpose  must  be 

(1)  State  V.  Green,  37  0.  S.  227;  Gosling  v.  Veley,  4  H.  L.  Cas.  679? 
Angell  &  Ames  Corp.,  §  127;  Grant  on  Corporations,  71. 

(2)  Anon.  Loffi,  315. 

(3)  Launtz  V.  People,  113  111.  137. 

(4)  Carroll  v.  Wall,  35  Kan.  36. 


44  MUNICIPAL    POLICE    ORDINANCES.  [§  46. 

strictly  observed.  So,  where  the  council  is  made  to  consist 
of  seven  members,  including  the  mayor  and  recorder,  or 
clerk,  and  four  of  the  trustees,  the  mayor  and  the  recorder  are 
present,  the  rules  can  not  be  suspended  by  vote  of  the  four 
trustees  alone,  the  charter  or  regulation  requiring  a  three- 
fourths  vote.^  In  another  case  the  charter  provided  that 
«ix  should  constitute  the  council  and  that  the  concurrent 
vote  of  four  should  be  necessary  to  elect  an  officer.  The 
number  of  councilmen  was  afterward  increased  by  law  to 
eight,  but  it  was  held  that  four  could  still  elect.^ 

§  46.  When  a  vote  may  be  reconsidered. — As  a  rale 
a  municipal  council  may  reconsider  any  action  taken  at  the 
same  meeting,  though  the  votes  of  a  specified  number  are 
usually  required,  or  sometimes,  a  suspension  of  the  rules. 
If  a  two-thirds  vote  is  necessary  to  suspend  the  rules, 
and  the  vote  taken  upon  the  pending  measure  after  a 
motion  to  reconsider  has  prevailed  shows  that  two-thirds 
of  those  present  voted  in  its  favor,  it  maybe  presumed  that 
the  motion  to  reconsider  was  also  carried  by  the  requisite 
proportion.*  If  a  condition  to  the  action  of  the  council  has 
been  fulfilled,  and  the  measure  defeated,  a  subsequent  recon- 
sideration, and  passage  of  the  measure  would  not  be  in  valid  ; 
the  condition  precedent  is  considered  sufficiently  observed.* 

The  right  to  reconsider  is  doubtful  when  the  rights  of 
others  have  become  vested  by  virtue  of  the  action  of  the 
council.  If  a  power  of  appointment  has  been  once  exer- 
cised, and  the  council  is  not  vested  with  a  right  of  removal 
without  cause,  the  appointment  can  not  lawfully  be  recon- 
sidered and  defeated.^  AVhen  the  council  has  attempted  to 
pass  an  ordinance  over  the  mayor's  veto  and  failed,  its 
power  is  exhausted,  and  the  motion  to  pass  the  ordinance 
over  the  veto  can  not  be  reconsidered.^ 

(1)  Horner  V.  Rowley,  51  la.  620. 

(2)  McDermott  v.  Miller,  45  N.  J.  251. 

(3)  Sank  v.  Philadelphia,  8  Phila.  117. 

(4)  People  V.  Rochester,  5  Lans  (N.  Y.)  11. 

(5)  State  V.  Barbour,  53  Conn.  76.  Contra:  Baker  v.  Cushman,  127 
Mass.  105  ;  State  v.  Chapman,  44  Conn.  601. 

(6)  Sank  v.  Philadelphia.  8  Phila.  117. 


§  47.]  COUNCIL    PROCEEDINGS.  45 

§  47.  Readings. — The  usual  statutory  direction  is  that 
every  ordinance  shall  be  read  at  three  different  meetings 
before  its  final  enactment.  The  direction  is  necessary  as  a 
safeguard  against  too  hasty  legislation,  and  its  observance 
mandatory.  If  neglected,  the  ordinance  is  ab  initio  void.^ 
But  it  is  not  necessary  that  the  readings  should  be  at  regu- 
lar meetings;  they  maybe  at  adjourned  meetings  not  held 
on  the  same  day.^  On  the  ground  that  the  letter  of  the 
statute  was  complied  with,  it  has  just  been  held  in  Ohio 
that  an  ordinance  is  valid  which  was  passed  at  an  adjourned 
meeting  under  a  suspension  of  the  rules,  although  at  the 
foregoing  regular  meeting  a  motion  to  suspend  the  rules  as 
to  the  same  ordinance  was  defeated.^ 

Ordinances  should  represent  the  will  of  the  local  legisla- 
tive body,  and  can  not  for  that  reason  be  proposed  by  one 
council  and  enacted  by  their  successors.  Each  council 
must  finish  its  own  business,  otherwise  any  action  in  which 
separate  and  distinct  councils  have  had  a  voice  is  not  the 
expression  of  the  same  legislative  will.  If,  after  an  ordi- 
nance has  passed  two  readings,  an  election  is  held  and  a 
part  of  the  council  superseded  by  new  members,  the  newly 
constituted  body  can  not  take  up  the  same  ordinance,  read 
it  the  third  time  and  pass  it.* 

Likewise,  the  requisite  readings  must  all  be  of  the  same 
ordinance.  Any  change  or  alteration  of  substance  made 
between  readings  destroys  the  efi:ect  of  the  first  or  previous 
reading.  An  immaterial  change  in  the  title  during  the 
passage  of  an  ordinance  would  not  afi^ect  its  validity.*  And 
this  difficulty  can  not  be  avoided  by  formally  reconsidering^ 
the  previous  reading  after  making  an  alteration,  for  the 

(1)  Weill  V.  Kenfield,  54  Cal.  111.  Contra:  Barton  v.  Pittsburgh,  4 
Brewster,  373. 

(2)  Cutcomp  V.  Utt.  60  la.  156. 

(3)  Madden  v.  Smeltz,  2  O.  Circ.  Ct.  168. 

(4)  The  only  direct  decision  is,  however,  contrary  to  the  text.  Mo- 
Graw  V.  Whitson,  69  la.  348;  s.  c,  34  Alb.  Law  Jour.  59. 

(5)  State  V.  Newark^  30  IN".  .T.  303  ;  .State  v.  Jersey  City,  34  N.  J.  429 ;, 
Staates  v.  Washington,  44  N.  J.  605. 


46  MUNICIPAL   POLICE   ORDINANCES.  C§  49. 

provision  that  the  readings  must  be  on  different  days  'would 
then  be  violated.^ 

The  provision  of  a  state  constitution  that  all  acts  "  of  a 
general  or  permanent  nature"  must  be  read  on  three  sepa- 
rate days  does  not  apply  to  a  resolution  awarding  a  con- 
tract, nor  to  a  resolution  declaratory  of  the  necessity  of  a 
certain  proposed  public  improvement.^ 

Any  provision  whereby  the  three  readings  may  be  had  at 
the  same  meeting,  as  by  suspending  the  rules,  must  be 
strictly  observed.  Thus,  where  the  rules  have  been  sus- 
pended, only  one  ordinance  may  be  passed  under  that  sus- 
pension.    If  two  are  enacted,  the  second  is  void.^ 

§  48.  Signature  of  clerk  of  council. — When  the  signa- 
ture of  the  clerk  of  the  council  is  required  to  be  attached 
to  an  ordinance,  the  act  is  entirely  ministerial  and  he  can 
not  refuse  to  comply.  In  case  of  refusal  the  presiding  offi- 
cer may  appoint  a  substitute  or  deputy  to  act  in  his  place.* 

§  49.  Signature  of  the  mayor.— A  broad  distinction 
exists  between  the  simple  signature  of  the  mayor  and  his 
approval.  His  signature  may  be  the  means  adopted  to 
designate  his  approval  when  his  approval  is  required  ;  but 
if  his  signature  alone  is  necessary  the  element  of  approval 
is  absent.  Unless  his  signature  is  made  essential  to  the 
validity  of  an  ordinance  by  the  express  terms  of  the  stat- 
ute or  charter,  the  requirement  is  only  directory,  and  the 
absence  of  his  signature  not  fatal  to  the  ordinance.'  So, 
where  the  statute  directed  the  mayor  to  sign  all  ordinances, 
but  he  omitted  to  perform  his  duty  with  regard  to  an  or- 
dinance which  was  properly  passed  and  published  as  though 

(1)  State  V.  Newark,  30  N.  J.  303. 

(2)  Cincinnati  V.  Bickett.  26  0.  S.  49;  Upington  v.  Oviatt,  24  0.  S. 
232. 

(3)  Bloom  V.  Xenia.  34  0.  S.  461. 

(4)  Preston  v.  Manvers,  21  U.   C.  Q.  B.  626. 

(5)  Stevenson  v.  Bay  City,  26  Mich.  44;  Martindale  v.  Palmer,  52 
Ind.  411;  Conboy  v.  Iowa  City,  2  la.  90;  Blanchard  v.  Bissell,  11  O, 
S.  96. 


§  51.]  COUNCIL    PROCEEDINGS.  47 

it  had  been  signed  by  him,  the  ordinance  was  sustained.^ 
In  such  case  the  signature  of  a  person  presiding  in  the 
mayor's  absence  is  effective.^  If  the  statute  only  directs 
the  mayor  to  sign  a  certain  class  of  ordinances  or  resolu- 
tions, the  provision  will  receive  a  liberal  construction  to 
excuse  any  omission.^ 

§  50.  The  mayor's  approval. — The  mayor's  approval, 
when  required,  is  essential  to  the  validity  of  an  ordinance, 
and  the  requirement  receives  strict  construction.  There 
is,  however,  no  common-law  rule  making  his  approval 
necessary.  The  requirement  must  be  embodied  in  the 
statutes  or  charter  governing  the  municipality.'*  Where 
the  charter  requires  the  sanction  of  the  mayor  to  all  coun- 
cil enactments,  an  ordinance  is  inoperative  till  approved.* 
A  provision  requiring  his  approval  of  "  every  ordinance  or 
resolution  "  is  imperative,  and  extends  to  all  acts  of  the 
council.^  Where  the  charter  gives  the  corporate  council 
power  to  pass  "by-laws,  ordinances,  resolutions,  and  regu- 
lations," and  requires  that  "by-laws  and  ordinances"  shall 
be  subject  to  the  mayor's  approval,  the  requirement  is  held 
to  extend  to  resolutions  as  well  as  to  ordinances.'^  And  even 
resolutions  appointing  officers  whose  duties  do  not  affect 
any  of  the  interests  of  the  public  are  included.* 

§  51.  How  signified. — The  mayor's  signature  alone  does 
not  constitute  an  approval,  and  especially  so  if  it  is  merely 
affixed  to  the  journal  of  the  council  meeting.®  Neither  is 
his  signature  the  only  method  of  expressing  his  approval. 
In  a  case  where  the  statute  required  his  approval  and  sig- 

(1)  Opelousas  v.  Andrus,  37  La.  Ann.  699;  Knight  v.  Kansas  City, 
.70  Mo.  231. 

(2)  O'Mally  v.  M'Ginn,  53  Wis.  353. 

(3)  State  V.  Jersey  City,  30  N.  J.  L.  148. 

(4)  Burlington  v.  Dennison,  42  N.  J.  165. 

(5)  Breaux's  Bridge  v.  Dupuis,  30  La.  Ann.  1105. 

(6)  People  V.  Schroeder,  76  N.  Y.  160. 

,       (7)  Kepner  v.  Commonwealth,  40  Pa.  St.  124. 
(8)  McDermottv.  Miller,  45  N.  J.  251. 
'  (9)  Graham  v.  Carondelet,  33  Mo.  262. 


48  MUNICIPAL    POLICE    ORDINANCES.  [§  52. 

nature,  and  his  approval  appeared  on  the  record  of  the 
council  proceedings  in  that  he  appears  as  votinoj  "yea"  to 
the  passage  of  a  "revised  code"  containing  old  and  new 
ordinances,  and  affixed  his  name  to  the  minutes,  the  com- 
pliance with  the  statute  was  held  sufficient,  as  his  approval 
and  not  his  signature  was  the  object  sought,  and  his  af- 
firmative vote  testifies  to  his  approval.^ 

A  veto  is  the  positive  expression  of  the  mayor's  disap- 
proval, and  is  conclusive  unless  some  method  is  provided 
for  passing  the  ordinance  over  the  veto.  If  such  a  method 
is  provided,  the  veto  power  once  exercised  is  exhausted,  and 
the  subsequent  passage  of  the  measure  by  the  requisite 
majority  gives  it  immediate  eft'ect.^  A  statute  requiring 
the  mayor  to  return  his  reasons  with  the  veto  is  imperative. 
A  veto  unaccompanied  by  reasons  is  wholly  inoperative  in 
such  case.^  If  the  statute  says  that  the  ordinance  shall 
take  efifect,  if  not  returned  by  the  mayor  with  his  veto, 
within  ten  days  from  its  passage,  the  provision  can  not  be 
defeated  and  an  expected  veto  avoided  by  the  adjournment 
of  the  legislative  body  before  the  ten  days  have  expired. 
The  mayor  may  have  ten  days  in  which  to  announce  his 
veto,  whether  the  council  is  in  session  or  not.* 

§  52.  Publication.— In  nearly  every  state  of  the  Union 
statutory  direction  is  made  for  the  publication  of  all  ordi- 
nances enacted  by  municipal  corporations.  If  no  publica- 
.tion  at  all,  or  an  imperfect  publication,  be  made  of  an  or- 
dinance requiring  assessments  upon  property,  and  involv- 
ing the  contractual  relations  of  the  city,  the  better  opinion 
seems  to  be  that  the  assessment  is  unlawful,  but  that  any 
contract  entered  into  by  virtue  of  its  provisions  will  bind 
the  corporation.*  The  object  of  publishing  police  ordi- 
nances is  to  give  notice  to  all  who  must  obey  them,  and 
since  this  class  of  ordinances  restrict  the  personal  rights 

(1)  WoodruflF  V.  Stewart,  63  Ala.  208. 

(2)  Ahrensv.  Fiedler,  43  N.  J.  401. 

(3)  Truesdale  v.  Rochester,  33  Hun,  574. 

(4)  State  V.  Carr,  67  Mo.  38. 

(5)  Moore  v.  Mayor,  73  N.  Y.  238;  Creighton  v.  Manson,  27  Cal.  6l6. 


§  52.]  COUNCIL   PROCEEDINGS.  49 

of  the  citizens,  it  is  the  policy  of  the  law  to,  insist  upon 
strict  compliance  to  the  publication  required.  There  seems 
to  be  some  authority  for  the  doctrine  that  the  requirement 
of  publication  is  only  directory  and  not  a  condition  prece- 
dent to  the  validity  of  the  ordinance.  In  such  case  the  or- 
dinance goes  into  eff'ect  from  the  moment  of  its  passage.^ 
Though  this  may  be  true  with  regard  to  property  ordi- 
nances, it  does  not  apply  to  police  ordinances.  If  stat- 
utory provision  has  been  made  for  publication,  its  object, 
that  of  giving  notice,  is  deemed  essential,  and  without  it 
the  legislative  intent  has  not  been  fulfilled.  If  the  legis- 
lative act  expressly  provides  that  failure  to  publish  shall 
not  affect  the  validity  of  the  ordinance,  the  ordinance  is 
in  force  from  the  date  of  its  passage.^  But  in  the  absence 
of  such  limitation  the  publication  in  the  manner  and  form 
prescribed  is  essential  to  the  validity  of  the  ordinance.^  A 
good  illustration  of  the  distinction  between  police  and 
other  ordinances  is  found  in  the  case  of  Stuhr  v.  Hoboken, 
47  N.  J.  L.  148.  A  statute  prohibited  any  change  in  the 
salaries  of  municipal  officers  during  their  terms  of  office, 
and  another  section  required  all  ordinances  to  be  published 
twenty  days  before  going  into  effect.  An  ordinance  was 
enacted  altering  the  salary  of  one  of  the  officers.  Before 
the  twenty  days  had  expired,  but  after  the  passage  of  the 
ordinance,  the  office  became  vacant  and  was  filled  by  an 
election.  The  new  incumbent  was  held  to  be  entitled  to 
the  salary  provided  by  the  new  ordinance.  "Within  the 
intent  of  the  statute  the  change  had  been  eflrected  as  soon 
as  the   ordinance   had   passed   the   council.     But,   in   the 

(1)  Commonwealth  v.  Davis,  140  Mass.  485;  In  re  Smith,  65  Barb. 
Barb.  283 ;  Mayor  v.  New  York,  25  Wend.  693.  If  a  revision  of  all  the 
ordinances  contains  a  prior  existing  ordinance  unchanged,  the  revision 
as  to  that  part  needs  no  publication.  Ex  parte  Bedell,  20  Mo.  App. 
125. 

(2)  Schweizer  v.  Liberty,  82  Mo.  309. 

(3)  Kneif  v.  People,  6  Hun,  238;  State  •;,  Hoboken,  38  N.  J.  110; 
Baltimore  u.  Johnson,  62  Md.  225;  Higley  v.  Bunce,  10  Conn.  435; 
Conboy  v.  Iowa  City,  2  la,  90;  Barnett  v.  Newark,  28  111.  62;  Hoboken 
V.  Gear,  27  N.  J.  265. 

4 


50  MUNICIPAL    POLICE    ORDINANCES.  [§  53. 

passage  of  police  ordinances,  the  element  of  notice  is  made 
essential,  and  until  notice  is  given  in  the  manner  pre- 
scribed the  ordinances  do  not  go  into  effect.  Where  pub- 
lication is  required,  the  fact  that  power  is  given  to  the  cor- 
poration to  prescribe  the  mode  does  not  presume  any  dis- 
cretion in  the  corporate  authorities  to  avoid  the  necessity 
of  publishing  the  ordinance  by  omitting  to  designate  how- 
it  shall  be  done.  Some  kind  of  publication  must  be  made 
by  order  or  direction  of  the  corporate  authorities.^ 

§  53.  Construction  of  provisions  regulating  the  time 
of  publication. — If  the  publication  is  directed  to  be  made 
for  a  certain  length  of  time,  as  is  usually  the  case,  the  first 
day  of  the  period  is  the  day  of  the  first  publication.  If  in 
a  newspaper,  and  the  newspaper  is  dated  later  than  actu- 
ally issued,  the  day  of  its  issuing  and  delivery  to  the  pub- 
lic is  the  first  day  of  the  period.  If  the  period  is  so  many 
days,  Sundays  and  holidays  are  not  excluded  from  the 
count.^  The  ordinance  does  not  go  into  effect  until  after 
the  expiration  of  the  full  period.  If  twenty  days'  publi- 
cation is  necessary,  an  offense  committed  on  the  twentieth 
day  is  not  punishable. 

Publication  must  usually  be  made  for  a  certain  number 
of  consecutive  weeks.  The  term  week  is  used  as  equiva- 
lent to  seven  days,  and  three  weeks  means  twenty-one 
days.^  The  publication  may  be  made  in  a  weekly  news- 
paper or  once  a  week  in  a  daily  paper.*  If  one  week's 
publication  is  required  a  single  insertion  in  a  weekly  pa- 
per suffices,  and  the  ordinance  is  in  opera^on  on  the  eighth 
day  from  the  date  of  its  actual  issue.' 

(1)  Higley  V.  Bunce,  10  Conn.  435;  Schwartz  v.  Oshkosh,  55  Wis. 
490;  Baltimore  v.  Little  Sisters,  56  Md.  400. 

(2)  Taylor  v.  Palmer,  31  Cal.  240;  Ex  parte  Fiske,  13  Pac.  Rep.  310 
(Cal.  1887), 

(3)  Longbridge  v.  Huntington,  56  Ind.  253. 

(4)  Hoboken  v.  Gear,  27  N.  J.  265. 

(5)  State  V.  Hardy,  7  Neb.  37;  Commonwealth  v.  Matthews,  122 
Mass.  60;  Hoboken  v.  Gear,  27  N.  J.  265. 


§  54.]  COUNCIL    PROCEEDINGS.  51 

§  54.  The  newspaper  in  which  pubhcation  may  be 
made. — If  no  method  of  publication  is  prescribed,  the 
publication  need  not  be  in  a  newspaper,  but  the  old  system 
of  posting  copies  and  notices  in  public  places  may  be  used. 
A  posting  in  five  or  six  places  would  be  sufficient.^  But 
publication  is  generally  directed  to  be  made  in  a  news- 
paper of  general  circulation  within  the  corporation.  If 
the  paper  must  simply  be  of  general  circulation,  it  need 
not  be  a  local  paper.  A  paper  issued  in  a  neighboring 
city,  but  circulating  generally  in  the  corporation,  would 
suffice.^  Publication  in  a  newspaper  published  and  issued 
in  the  corporation,  but  having  no  local  circulation,  would 
be  defective.'^  "Where  the  publication  is  directed  to  be 
made  in  an  adjoining  municipality,  in  the  absence  of  any 
local  paper,  a  leading  paper  in  a  large  city  not  far  distant 
which  circulates  in  the  community,  may  be  resorted  to  in 
preference  to  the  local  paper  of  a  village  lying  nearer,  in 
point  of  fact,  than  the  city.*  A  newspaper  which  is  edited 
and  issued  in  a  city  is  in  a  legal  sense  printed  and  published 
in  the  city,  though  the  type  and  press-work  are  done  out 
of  the  city.® 

If  the  duty  of  the  council  to  designate  the  particular 
newspaper  has  been  neglected,  the  clerk  may  make  a  law- 
ful publication  in  any  paper  in  the  city.^  And  after  the 
publication  is  begun  a  designation  of  a  different  paper  by 
the  council  would  take  effect  only  as  to  subsequent 
ordinances. 

The  council  is  not  obliged  to  select  a  publication  devoted 
entirely  to  news,  but  its  contents  may  be  of  a  legal,  com- 
mercial, scientific,  or'  political  nature.  The  word  nev:s- 
paper  is  a  generic  term  for  periodical,  unbound  publica- 
tions of  all  kinds,  and  its  contents  need  not  be  current 

(1)  Queen  v.  Justices,  4  Q.  B.  D,  522;  s,  c,  29  Moak  Eng.  Rep.  61. 

(2)  Tisdale  v.  Miiionk,  46  111.  9. 

(3)  Haskill  v.  Bartlett,  34  Cal.  281. 

(4)  Gallerno  v.  Rochester,  46  U.  C.  Q.  B.  279. 

(5)  Bayer  v.  Hoboken,  44  N.  J.  131. 

(6)  In  re  Durkin,  10  Hun,  269.  A  paper  once  designated  is  de  facto 
the  official  paper,  and  publications  made  therein  are  valid,  though  the 
appointment  was  irregular.     Wright  v.  Forrestal,  65  Wis.  341. 


52  MUNICIPAxi   POLICE   ORDINANCES.  [§  56. 

news.^  It  is,  however,  implied  that  the  paper  must  be  one 
printed  in  the  English  language.  A  publication  in  a  Ger- 
man newspaper  alone  would  be  void.^ 

§  55.  Form  of  the  notice  published. — In  the  absence 
of  any  express  direction  as  to  the  form  of  the  advertise- 
ment, any  thing  will  be  sufficient  which  gives  the  body  of 
the  ordinance  its  title  and  the  signatures  required  by  law. 
It  is  not  necessary  to  state  that  the  publication  is  made  in 
compliance  with  the  statute  requiring  it,  neither  need 
the  power  authorizing  the  ordinance  be  recited.'  The 
ordinance  may  be  published  as  a  part  of  the  proceedings 
of  the  council  session  at  which  it  was  passed.^  It  may  be 
published,  too,  in  more  ways  than  are  necessary  without 
laying  grounds  for  an  injunction  at  the  instance  of  a  tax- 
paj'er.*  Errors  in  printing,  or  slight  variation  from  the 
text  of  the  ordinance,  are  not  fatal  so  long  as  the  intent 
and  purport  of  no  material  provision  are  concealed.^ 

§  58.  Record  of  the  ordinance. — Municipal  councils 
should  keep  a  journal  of  all  their  proceedings,  and  record 
in  it  every  thing  that  transpires,  and  especially  every  thing 
connected  with  the  passage  of  ordinances.  This  is  essen- 
tial because  the  record  is  the  best,  if  not  the  only  means 
of  proving  that  certain  ordinances  have  been  lawfully  en- 
acted. Compliance  with  those  formalities  in  the  passage 
of  ordinances  which  do  not  go  to  the  validity  of  the 
council's  action,  and  which,  as  matters  of  mere  detail,  are 
considered  only  directory,  may  perhaps  be  shown  by  evi- 
dence outside  of  the  record,  but  compliance  with  manda- 
tory provisions,  and  with  formalities  that  are  considered  as 
conditions  precedent  to  the  validity  of  the  ordinance,  can 

(1)  Kellogg  V,  Corrico.  47  Mo.  157;  Kerr  v.  Ilitt,  75  111.  51. 

(2)  Cincinnati  v.  Bickett,  26  O.  S.  49. 

(3)  People  V.  San  Francisco,  27  Cal.  655,  See  also  Moss  v.  Oakland, 
88  111.  109. 

(4)  Law  V.  People,  87  111.  389. 

(5)  Wasem  v.  Cincinnati,  2  Sup.  Ct.  Rep.  84  (Ohio). 

(6)  Law  V.  People,  87  111.  389 ;  Moss  v.  Oakland,  88  111.  109. 


t 


§  56.]  COUNCIL   PROCEEDINGS.  53 

only  be  sRown  by  the  record.  In  order  to  avoid  any 
question  the  record  should  'omit  nothing  at  all.  The 
extent  to  which  extrinsic  testimony  is  admitted  is  consid- 
ered in  the  treatment  of  rules  of  evidence,  post,  §  186. 
The  object  of  a  record  is  apparent,  but  it  is  not  very  im- 
portant that  it  should  be  made  in  any  particular  manner, 
so  long  as  testimony  can  be  procured,  if  the  record  is  not 
self-explanatory  in  that  respect,  to  identify  the  writing  as 
the  record  of  the  proceedings  of  the  council.  If  the 
statute  directs  the  recording  of  all  ordinances  "in  a  sepa- 
rate book,"  the  provision  is  merely  directory  and  the  ordi- 
nance is  valid,  though  recorded  only  in  the  council  journal.^ 
It  is  not  necessary  for  the  clerk  or  other  official  intrusted 
with  making  up  the  record  to  do  the  manual  labor  himself. 
It  need  only  be  done  under  his  general  supervision  and 
direction.^  Irregularities  in  the  performance  of 'purely 
ministerial  duties  are  not  fatal  to  the  ordinance,  if  the  sub- 
stantial formalities  of  passage  have  been  observed.  So, 
the  alteration,  by  interlineation  in  the  record  book,  of  an 
ordinance  that  had  been  properly  passed,  would  have  no 
effect.^  And  if  the  statute  directs  the  mayor  to  sign  the 
record  book  at  the  end  of  the  record  of  the  proceedings 
of  each  session  of  the  council,  his  omission  is  merely  a 
neglect  of  a  ministerial  dnt}'  a.nd  is  not  fatal  to  the  validity 
of  the  proceedings.*  There  is  always  implied  power, to 
have  the  ordinances  printed.^ 

The  record,  as  has  been  said,  should  be  a  true  account 
of  all  the  proceedings,  or,  if  a  separate  book  is  kept  in 
which  formal  enactments  are  copied,  it  should  not  only 
contain  the  ordinances,  but  also  every  regulation,  rule,  or 
resolution  of  however  temporary  a  character.^  Still,  a 
contract  entered  into  by  the  corporation  in  pursuance  of  a 

(1)  Upington  v.  Oviatt,  24  0.  S.  232. 

(2)  Hutchinson  v.  Pratt,  11  Vt.  402. 

(3)  Railroad  Co.  v.  Odum,  53  Tex.  343. 

(4)  Stevenson  v.  Bay  City,  26  Mich.  44;  Gonboy  v.  Iowa  City,  2  la.  90. 

(5)  Dwyer  v.  Brenham,  6.5  Tex.  526. 

(6)  Logan  v.  Tyler,  1  Pittsburgh  Rep.  244, 


54  MUNICIPAL    POLICE    ORDINANCES.  [§  58. 

resolution  would  not  be  voidable  for  failure  to'  record  the 
resolution.^ 

§  57.  What  the  record  must  contain. — The  record  or 
journal  must  show  compliance  with  all  the  formalities 
which  are  considered  mandatory.  These  may  be  sum- 
marized as  :^ 

{a)  The  body  of  the  ordinance,  its  title,  and  the  date,  or 
dates,  of  its  consideration. 

(6)  The  requisite  number  of  readings  on  different  days, 
or,  if  on  the  same  day,  a  suspension  of  the  rules  for  the 
consideration  of  the  ordinance  in  question. 

(c)  The  vote,  or  action,  on  the  final  motion  to  adopt  the 
ordinance. 

{d)  The  approval  of  the  mayor  and  the  signatures  of  the 
ofiicer^,  mayor  or  clerk,  or  both,  when  required.  If  vetoed, 
the  vote  of  the  council  on  passage  of  the  ordinance  over 
the  veto. 

(e)  The  publication,  specifying  date  and  newspaper,  or 
places  of  posting  notices,  generally  required  to  be  evi- 
denced by  the  certificate  of  the  publisher,  or  of  the  clerk 
of  the'^uncil. 

(/)  Any  other  requirements  specially  provided  by  stat- 
ute, charter,  or  council  rules. 

§  58.  Record  of  votes.— Where  any  of  the  steps  neces- 
sary to  the  construction  of  a  public  improvement  must  be 
passed  by  a  certain  vote  of  the  council,  the  record  must 
enumerate  those  who  voted  affirmatively  and  negatively  in 
order  that  no  doubt  may  arise  as  to  the  compliance  with 
the  requirement.  The  presence  or  participation  of  any 
member  can  not  be  left  to  presumption.' 

fr  (1)  Parr  v.  Greenbush.  72  N.  Y.  463. 

(2)  Schwarzr.  Oshkosh,  55  Wis.  490;  State  v.  Union,  32  N.  J.  343. 
Gontra  as  to  readings  :  People  v.  Starne,  35  111.  121 ;  Supervisors  v.  People, 
25  111.  181.  Special  rule  in'Boston,  Commonwealth  v.  Davis,  140  Mass. 
485. 

(3)  Steckert  v.  East  Saginaw,  22  Mich.  104;  In  re  Carlton  Street,  16 
Hun,  497;  In  re  Buffalo,  78  N.  Y.  362;   Delphi  v.  Evans,  36  Ind.  90; 


§  58.J  COUNCIL   PROCEEDINGS.  55 

In  regard  to  ordinances  that  define  and  prescribe  penal- 
ties for  offenses,  the  same  rule  prevails.  The  calling  the 
vote  is  a  condition  precedent  to  the  validity  of  the  ordi- 
nance passed.  If  the  ayes  and  nays  are  required,  the 
record  must  show  that  they  were  taken.^  But  unless  the 
statute  expressly  requires  the  vote  as  called  to  be  recorded, 
it  will  suffice  that  the  record  shows  indirectly  a  compliance 
with  the  condition.  Thus,  if  a  three-fourths  vote  is  neces- 
sary to  suspend  the  rules,  and  the  record  of  a  session  shows 
that  six  of  the  seven  members  being  present,  the  rules 
requiring  three  readings  were  suspended  and  the  ordinance 
adopted  by  a  vote  of  all  those  'present^  the  conclusion  is 
inevitable  that  the  motion  to  dispense  with  the  second  and 
third  readings  was  carried  by  a  three-fourths  vote  of  the 
council.^  There  seems,  likewise,  to  be  no  necessity  of 
spreading  the  ayes  and  nays  on  the  record,  whenever  the 
record  shows  that  a  measure  was  adopted  unanimously.^ 
Compliance  with  the  requirement  may  be  shown  indirectly, 
unless  the  statute  or  charter,  expressly  directs  that  the  ayes 
and  nays  shall  be  recorded  as  well  as  taken,  in  which  case 
the  statute  is  mandatory  and  the  ordinance  void  if  the 
record  is  defective.*  No  record  of  the  vote  taken  on  a 
motion  to  adjourn  need  be  kept.^  If  several  resolutions 
are  passed  together,  there  need  be  no  separate  record  of  the 
vote  for  each  ordinance.^ 

Spanglerv.  Jacoby,  14  111.  297;  Rich  v.  Chicago,  59  111,  286.  Contra: 
Strikers.  Kelly,  7  Hill,  9  (dissenting  opinion,  mandatory);  St.  Louis 
V.  Foster,  52  Mo.  513;  Mayor  v.  New  York,  25  Wend.  693. 

(1)  Tracy  v.  People,  6  Col.  151. 

(2)  State  V.  Vail,  53  la.  550.  The  rule  in  Iowa  is,  however,  more 
lenient  than  in  any  other  %tate  in  which  the  courts  have  considered 
the  question.  Brewster  v.  Davenport,  51  la.  427 ;  Eldora  v.  Burlin- 
game.  62  la.  32;  and  see  McCormick  v.  Bay  City,  23  Mich  457. 

(3)  Elmendorf  y.  Ewen,  2  N.  Y.  Leg.  Obs.  85;  Solomon  v.  Hughes, 
24  Kan.  211;   Barr  v.  Auburn,  89  111.  361, 

(4)  Steckert  V.  East  Saginaw,  22  Mich.  104;  McCormick  v.  Bay  City, 
23  Mich.  457;  Gas  Company  v.  Toberman,  61  CaL  199;  Cutler  w.  Rus- 
sellville,  40  Ark.  105;  Logansport  v.  Crockett,  64  Ind.  319;  Olin  v. 
Meyers,  55  la.  209. 

(5)  Green  Bay  v.  Brauns,  50  Wis.  204. 

(6)  Wright  V.  Forrestal,  65  Wis.  341. 


56  MUNICIPAL   POLICE   OBDINANCES.  [§  60a. 

§  59.  Informalities  subsequently  cured. — Any  infor- 
mality in  the  passage  of  an  ordinance  is  incurable  by  sub- 
sequent supplementary  action,  except  the  last  in  order  of 
procedure.  If  the  record  has  been  omitted,  and  no  time 
limit  is  imposed  by  statute,  it  may  be  supplied  and  tbe 
ordinance  validated.^  But  this  could  only  be  done  by  the 
council  which  had  voted  on  the  ordinance,  not  by  its  suc- 
cessor. All  other  defects  in  the  passage  of  police  or 
punitive  ordinances  are  fatal  so  far  as  subsequent  action  is 
concerned.^ 

§  60.  Repeal.  Power  to  enact  ordinances  is  legislative, 
and,  as  we  have  already  seen,  continuing.  The  power  is 
not  exhausted  by  once  being  exercised,  but  the  municipal- 
ity may  change  its  laws  to  accord  with  its  growing  and 
varying  needs,  and  it  may  provide  suitable  remedies  for 
each  new  mischief.  This  implies  the  right  to  repeal  exist- 
ing ordinances,  and  either  to  omit  to  supplant  them  or  to 
enact  others  of  a  difierent  character  in  their  places.  Power 
to  enact  implies  power  to  repeal.^  The  right  to  reconsider 
its  enactments  is  inherent  in  tfie  municipal  council  as  a 
legislative  body.*  This  applies  to  ordinances  establishing 
municipal  offices  as  well  as  to  remedial,  ordinances ;  power 
to  erect  an  office  gives  power  to  abolish  it,  saving  the  rights 
of  the  immediate  incumbeut.' 

§  60a.  Must  be  by  the  council. — N"o  express  repeal  may 
be  made  except  by  the  same  body  that  enacted  the  ordi- 
nance— that  is,  by  the  council.^  The  legislature  can  not, 
by  express  intendment,  repeal  ordinances,  though  a  repeal 

(1)  Schenley  v.  Commonwealth,  36  Pa.  St.  29.  Nunc  pro  tunc  entry 
of  ayes  and  nays  may  be  made.    Logansport  i-.  Crockett,  64  Ind.  319. 

(2)  McCracken  v.  San  Francisco,  16  C"al.  591;  Pimental  v.  San  Fran- 
Cisco,  21  Cal.  362.  The  rule  is  diflFerent  as  to  property  ordinance.s. 
Lucas  V.  San  Francisco,  7  Cal.  413;  Holland  v.  San  Francisco,  7  CaL 
361;  Cory  v.  Somerset,  44  N.  J.  445. 

(3)  Kansas  City  v.  White,  69  Mo.  26. 

(4)  Jersey  City  v.  State,  30  N.  J.  529. 

(5)  Waldraven  v.  Memphis,  4  Coldw.  431. 

(6)  Rex  V.  Ashwell,  12  East,  22. 


^    62.]  COUNCIL   PROCEEDINGS.  57 

may  be  effected  by  the  passage  of  a  general  law  that  is  in- 
cousistent  with  the  ordinance.  The  legislature  can  not  be 
restricted  in  the  freedom  of  its  action  by  any  exercise  of 
the  powers  previously  delegated  by  it  to  municipal  corpora- 
tions. ITeither  can  the  mayor  or  a  single  branch  of  a  com- 
pound council  effect  a  repeal.  Only  the  power  that  enacts 
can  expressly  repeal.^  ♦ 

§  61.  Form  of  the  repealing  act. — Express  repeals  can 
only  be  effected  by  an  act  of  equal  grade  with  that  by 
which  the  ordinance  was  originally  put  into  operation. 
Ko  part  or  feature  of  an  existing  ordinance  can  be  changed 
by  a  mere  resolution  of  the  council,  even  though  signed  by 
the  mayor  and  recorded.  A  new  ordinance  must  be  passed.* 
So,  contracts  that  were  made  by  vote  of  the  council  can 
only  be  rescinded  in  similar  manner.^ 

§  62.  Repeal  by  the  legislature  by  implication. — 
Though  the  state  legislature  is  powerless  to  effect  the  re- 
peal of  municipal  ordinances  directly,  there  are  various 
ways  in  which  it  may  be  done  impliedly.  If  the  legislature 
amends. the  grant  of  power  to  the  municipality,  the  ordi- 
nances, or  parts  of  ordinances,  that  were  valid  under  the 
old  power,  but  inconsistent  with  the  new  power,  are  re- 
pealed by  implication.  The  effect  amounts  to  a  repeal,  for 
to  that  extent  the  ordinance  can  not  be  enforced.  But  if 
the  ordinance  contains  several  provisions  and  the  altera- 
tion in  the  power  affects  a  part  only  of  those  provisions 
and  does  not  disturb  the  validity  of  the  mode  of  punish- 
ment adopted,  the  ordinance  is  only  repealed  pro  tanto. 
The  balance  remains  in  effect.*  A  change  in  the  state 
statute  does  not  repeal  the  ordinance  unless  conflicting 
with  it.^    The  alteration  must  go  to  the  substance  and  not 

(1)  City  Council  v.  Church,  4  Strobh.  306. 

(2)  Jones  v.  McAlpine,  64  Ala.  511. 

(3)  Terre  Haute  v.  Lake,  43  Ind.  480. 

(4)  Chamberlain  v.  Evansviller  77  Ind.  542j  Franklin  v.  Westfall,  27 
Kan.  614. 

(5)  In  re  MoWle  Hall,  10  Neb.  537. 


58  MUNICIPAL    POLICE    ORDINANCES.  [§  63. 

merely  to  the  form  of  the  general  law.  Thus,  the  change 
of  a  village  to  a  city  leaves  the  ordinances  of  the  village 
operative  as  ordinances  of  the  city.*  So,  if  the  new  stat- 
ute confers  upon  the  municipality  the  same  rights  and 
powers  in  a  different  form  or  under  a  new  name,  together 
with  additional  powers,  the  ordinances  enacted  before  the 
change  are  not  interfered  with.''  It  is  not  the  policy  of 
the  law  to  consider  municipal  powers  repealed  by  impli- 
cation.' 

§  63.  Implied  repeal  by  passage  of  inconsistent  or- 
dinance.— The  rules  governing  the  repeal  of  statutes  by 
implication  are  equaJly  applicable  to  questions  arising  un- 
der municipal  ordinances.  The  enactment  of  an  ordinance 
containing  provisions  directly  repugnant  to  those  embodied 
in  the  previously  existing  ordinance  on  the  same  subject 
repeals  the  former  ordinance  by  implication.*  For  ex- 
ample, an  ordinance  prohibiting  persons  from  allowing  ani- 
mals to  run  at  large,  would  be  repealed  by  a  subsequent 
ordinance,  containing  the  same  prohibition  "  as  may  from 
time  to  time  be  designated  by  resolution."  *  But  repeals 
by  implication  are  not  favored,  and  will  only  be  sustained 
■when  the  terms  of  the  subsequent  ordinance  are  so  di- 
rectly inconsistent  with  those  of  the  prior  ordinance  that 
they  can  not  be  reconciled.  Otherwise  both  exist  concur- 
rently, until  one  is  expressly  repealed.®  The  repeal  operates 
to  the  extent  of  the  direct  conflict.^  As  a  general  rule  a 
subsequent  ordinance  which  covers  the  entire  field  occu- 
pied by  the  prior  ordinance  will  be  considered  to  repeal 
the  prior  ordinance  by  implication.     Effect  will  be  given 

(1)  Academy  v.  Erie,  31  Pa.  St.  515. 

(2)  Waring  v.  Mobile,  24  Ala.  701. 

(3)  New  York  v.  Hyatt,  3  E.  D.  S.  156. 

(4)  Ex  parte  Wolf,  14  Neb.  24. 

(5)  Lenz  v.  Sherrott,  26  Mich.  139. 

(6)  Croll  V.  Village,  40  0.  S.  340 ;  Barker  v.  Smith,  10  S.  Car.  226  ;  Provi- 
dence V.  Railroad  Co.,  12  R.  I.  473.  An  ordinance  relating  to  a  special  lo- 
cality is  not  repealed  by  a  subsequent  general  ordinance.  Garret  v.  James^ 
65  Md.  250. 

(7)  Greely  v.  Jacksonville,  17  Flor.  174. 


§  66.]  COUNCIL     PROCEEDINGS.  59 

to  an  evident  intent  on  the  part  of  the  council  to  revise 
the  whole  system  of  regulation  of  some  subject  of  munici- 
pal control,  but  the  intent  must  be  plain.^ 

§  64.  Amendments. — A  repeal  by  implication  can  be 
effected  by  the  enactment  of  an  amendment  to  an  existing 
ordinance  that  is  inconsistent  with  it,  as  well  as  by  the 
passage  of  a  new  and  separate  ordinance.  If  an  ordinance 
is  expressly  repealed  by  reference  to  title  and  date  of 
passage  any  amendments  which  have  been  made  fall  with 
the  main  ordinance.^  For  this  reason,  and  in  order  to  pre- 
serve the  ordinances  in  an  orderly  manner,  amendments, 
except  of  a  very  minor  character,  should  be  avoided. 

§  65.  Summary. — Repeals,  then,  may  be  effected  in  four 
various  ways  : 

(1)  By  withdrawal  by  the  state  of  the  delegated  power 
under  which  ordinances  are  passed. 

(2)  By  the  enactment  by  the  state  of  a  statute  contain- 
ing provisions  clearly  repugnant  to  those  of  the  ordinances. 

(3)  By  express  act  of  the  municipal  legislative  body. 

(4)  By  implication  from  a  subsequent  ordinance,  (a)  con- 
taining provisions  plainly  repugnant  to  those  of  the  prior 
ordinance;  (6)  covering  the  entire  subject-matter  of  the 
prior  ordinance,  and  in  a  different  manner. 

§  66.  Saving  clause  in  subsequent  ordinance. — When- 
ever it  is  not  intended  that  the  passage  of  an  ordinance 
shall  affect  existing  ordinances,  a  saving  clause  should  be 
inserted.  Even  such  a  clause  would  not,  however,  apply 
to  any  ordinance  or  resolution  that  was  in  excess  of  the 
power  of  the  municipality  at  the  time  of  its  enactment,  so 

(1)  Burlington  v.  Estlow,  43  N.  J.  13;  Decorah  v.  Dunstan,  38  la.  96; 
Booth  V.  Carthage,  67  111.  103. 

(2)  Schwartz  v.  Oshkosh,  55  Wis.  490.  A  valid  amendment  of  an  ordi- 
nance will  not  fall  because  ih&t  part  of  the  ordinance  which  it  amends 
was  invalid.  Otherwise,  if  the  whole  of  the  amended  ordinance  was 
invalid.     State  v.  Kantler,  33  Minn.  69. 


-60  MUNICIPAL   POLICE    ORDINANCES.  [§  67. 

as  to  validate  it.^  Neither  will  a  saving  clause  have  any 
retroactive  effect.  After  the  repeal  of  a  police  ordinance, 
the  corporation  can  not,  by  a  subsequent  ordinance,  declare 
that  the  former  repeal  shall  not  affect  proceedings  for  the 
punishment  of  ofienses  against  the  ordinance .  repealed 
which  had  already  been  committed.  In  order  to  diminish 
the  effect  of  a  repeal,  the  reservation  must  be  incorporated 
in  the  repealing  act.^ 

The  repeal  of  a  repealing  ordinance  does  not  revive  the 
original  ordinance.     It  must  be  enacted  anew.' 

§  67.  Effect  of  a  repeal  on  vested  rights. — Xo  repeal 
of  an  existing  ordinance  can  operate  to  destroy  rights  of 
property  that  have  been  vested  by  virtue  of  its  provisions. 
The  most  that  can  lawfully  be  done  is  to  subject  those 
rights  to  any  degree  of  police  regulation  that  would  be 
lawful  had  they  arisen  independently  of  the  ordinance. 
No  person  can  claim  immunity  from  proper  police  regula- 
tion of  his  vested  interests  because  they  were  based  upon 
the  privileges  or  under  the  protection  of  a  municipal  or- 
dinance.* The  right  of  a  municipal  officer  to  the  enjoy-' 
ment  of  his  office,  or  of  his  full  salary,  belongs  to  a  different 
■class  of  rights.  If  an  elective  officer,  his  salary  may  be 
reduced  or  his  office  abolished  during  his  incumbency  for 
good  cause  and  upon  some  kind  of  judicial  determination ; 
but  if  appointive,  at  the  pleasure  of  the  appointing  power." 

(1)  Cairo  V.  Bross,  101  111.  476. 

(2)  Day  v.  Clinton,  6  111.  App.  476. 

(3)  Idem. 

(4)  Quincyv.  Bull,  106  111.  337;  Gormley  v.  Day,  114  111.  185;  Bald- 
win V.  Smith,  82  111.  162;  People  v.  Railroad  Co.,  18  111.  App.  12.3;  Kail- 
way  Co.  V.  Railway  Co.,  14  Fed.  Rep.  525;  Mayor  v.  Lumpkin,  5  Ga. 
447;  Railroad  Co.  v.  Burlington,  49  la.  144;  Des  Moines  v.  Railroad 
Co.,  41  la.  569;  Railroad  Co.  v.  Cape  May,  35  N.  J.  Eq.  419;  Charleston 
V.  Church,  4  Strob.  306.  Post,  §g  257-265,  as  to  rights  under  municipal 
licenses. 

(5)  4  Am.  &  Eng.  Corp.  Cas.  658,  note;  6  Am.  &  Eng.  Corp.  Cas.  97, 
note;  4  Am.  &  Eng.  Corp.  Cas.  690  and  705.  Gontra,  when  appointive^ 
Waterbury  v.  Martin,  46  Conn.  479. 


§  70.]  FORM    OF    THE    ORDINANCE.  61 

Fart  II. 

§  68.  Form  of  ordinances. — Too  much  care  can  not  be 
exercised  in  drafting  ordinances,  especially  police  ordi- 
nances, as  the  omission  of  any  material  part  may  prove  a 
fatal  defect,  and  because  even  mere  irregularities  afford 
opportunities  to  question  their  validity.  Of  course,  the 
ordinance  must  be  in  writing  or  print,  and  must  be  com- 
posed in  the  English  language.^  An  ordinance  of  the 
city  of  New  Orleans,  enacted  in  1830  in  the  French  lan- 
guage, when  French  was  the  language  of  the  city,  the 
statute  being  silent  as  to  the  proper  language  to  be  used, 
was  held  valid.^ 

§  69.  Constituent  parts. — Where  an  ordinance  is  in 
regular  form  it  contains  certain  regular  parts,  viz  : 

(1)  The  titky  generally  in  form  like,  "An  ordinance  to 
regulate  "  [some  subject  of  municipal  control]. 

(2)  The  introduction,  in  form,  "  Be  it  ordained  by  the 
council  of  the  [city]  of ." 

(3)  The  definition  of  the  thing  regulated,  or  of  the  ad 
prohibited,  and  the  command  or  direction  in  that  re* 
gard. 

(4)  llie  designation  of  the  penalty  imposed  for  an  offense 
against  the  ordinance. 

(5)  The  direction  as  to  the  time  when  the  ordinance  shall 
go  into  operation. 

§  70.  Ordinances  like  resolutions  in  form. — If  no  defi- 
nite direction  is  made  by  the  statute  governing  the  form 
of  the  ordinance,  it  may  be  drawn  in  the  form  of  a  reso- 
lution. If  then  passed  with  all  the  formalities  of  a  regu- 
lar ordinance,  it  will  be  in  effect  an  ordinance.  The  sub- 
stance of  an   ordinance    must    be   present,   and    no   step. 

(1)  Breaux's  Bridge  v.  Dupuis,  30  La.  Ann.  1105. 

(2)  Loze  V.  Mayor,  2  La.  427. 


62  MUNICIPAL   POLICE. ORDINANCES.  [§71. 

omitted.*    A  mere  temporary  or  "nformal  motion  c&n  never 
amount  to  an  ordinance.^ 


§  71.  The  title. — The  title  is  not  a  substantial  part  of 
the  ordinance.  It  serves  to  direct  attention  to  the  nature 
of  the  provisions  of  the  ordinance.  Not  being  of  tho  sub- 
stance of  the  ordinance,  its  wording  can  not  be  taken  into 
consideration  when  construing  ambiguous  provisions  in 
the  body  of  the  ordinance.  It  in  no  sense  controls  the 
ordinance.'  For  the  same  reason,  an  ordinance  is  not 
affected  by  any  slight  irregularities  or  mistakes  in  the 
wording  of  the  title.  If  the  title  uses  the  words  "  com- 
mon council "  instead  of  "  city  council,"  the  error  is  im- 
material.* Generally,  the  statutes,  or  charter,  by  which 
power  is  given  to  enact  ordinances,  provide  that  the  title 
shall  clearly  express  the  nature  of  the  ordinance,  or  that 
the  ordinance  shall  cover  one  subject  only,  which  shall  be 
expressed  in  its  title.  Such  provisions  are  intended  to 
prevent  fraud  and  surprise,  both  on  the  council  and  on 
those  who  must  take  notice  of  and  obey  the  ordinance,  and 
honest  legislation  should  not  be  embarrassed  by  observance 
of  the  requirement.  Any  matter  congruous  to  the  main 
object  of  the  ordinance  may  nevertheless  be  included.' 
The  title  need  merely  express  the  general  subject  so  as  to 
fairly  give  notice  of  the  contents  of  the  ordinance.®  If  the 
title  reads,  "An  ordinance  to  regulate  and  prohibit  the  run- 
ning at  large  of  animals,"  a  section  may  lawfully  be  in- 
serted in  the  ordinance  providing  a  penalty  for  breaking 

(1)  Manufacturing  Co.  v.  Schell  City,  21  Mo.  App.  175;  State  v. 
Kantler.  33  Minn.  69;  Sower  v.  Philadelphia,  35  Pa.  St.  236;  First 
Municipality  v.  Cutting,  4  La.  Ann.  336;  Tipton  v.  Norman,  72  Mo. 
380;  Paterson  v.  Barnet,  46  N.  J.  62. 

(2)  Manufacturing  Co.  v.  Schell  City,  21  Mo.  App.  175. 

(3)  Hershoff  v.  Beverly,  45  N.  J.  288. 

(4)  Law  V.  People,  87  111.  389. 

(5)  St.  Louis  V.  Green,  70  Mo.  562;  s.  c,  7  Mo.  App.  468;  St.  Louis 
V.  Tiefel,  42  Mo.  578. 

(6)  Barton  v.  Pittsburgh,  4  Brewst.  373 ;  Esling's  Appeal,  89  Pa.  St. 
205;  Mauch  Chunk  v.  McGee,  81  Pa.  St.  434;  Bergman  v.  Railway  Co., 
88  Mo.  678;  State  v.  Cantieny,  34  Minn.  1. 


I  73.]  FORM   OF   THE    ORDESTANCE.  63 

open  the  public  pounds.^  If  the  title  indicates  that  the 
ordinance  is  regulatory  in  its  scope,  it  may  in  fact  be  pro- 
hibitory.^ It  has  even  been  held  in  New  York  that  a  title 
simply  heading,  "An  act  for  the  relief  of  the  village  of  C," 
is  not  in  violation  of  the  constitutional  requirement  that 
the  subject-matter  shall  be  designated  by  the  title.^ 

§  72.  The  introduction. — Although  it  is  customary  and 
advisable  to  preface  the  body  of  an  ordinance  with  words 
sio-nifying  that  it  is  ordained  or  enacted  by  the  proper 
legislative  body,  such  as,  "  Be  it  ordained  by  the  common 
council  of  A.,"  this  introduction  is  not  essential.  The  fact 
that  the  ordinance  was  regularly  passed  and  entered  on  the 
council  journal  is  considered  a  sufficient  declaration  that  it 
is  the  formal  act  of  the  council*— a  variance  in  the  name  ol' 
the  corporation  when  used  in  the  introduction  is  immaterial. 
An  ordinance  is  valid  if  it  appears  on  the  face  to  have  been 
enacted  and  passed  by  a  municipal  body  having  authority 
to  make  such  an  enactment,  under  the  power  granted.^ 

§  73.  Ordinance  need  not  recite  authority.— Where 
no  reference  is  made  in  the  body  of  an  ordinance  to  the  par- 
ticular grant  of  power  under  which  it  is  sought  to  be 
enacted,  the  ordinance  will  be  valid  if  it  is  within  any  of 
the  powers  granted  to  the  municipality.  Whereas,  if  the 
power  is  recited  in  the  ordinance  and  proves  inadequate 
to  support  it,  the  ordinance  can  not  be  sustained  under  an- 
other power  which  is  adequate.  It  is,  therefore,  not  only 
unnecessary,  but  also  unadvisable  to  incorporate  the  power 
into  the  ordinance,  or  to  refer  to  it  in  any  way .^ 

Likewise,  if  the  right  to  pass  an  ordinance  on   a  given 

(1)  Smith  V.  Emporia,  27  Kan.  528. 

(2)  Cantril  v.  Sainer,  59  la.  26. 

(3)  Water  Commissioners  v.  Dwight,  101  N.  Y.  9;  In  re  Knaust,  101 

N.  Y.  188. 

(4)  People  V.  Lee,  112  111.  113,  see  p.  121 ;  People  v.  Murray,  57  Mich. 
396;  Cape  Girardeau  v.  Riley,  52  Mo.  424. 

(5)  Hawkins  v.  Huron,  2  U.  C.  C.  P.  72. 

(6)  Church  v.  Baltimore,  6  Gill,  391;  Commonwealth  v.  Fahey,  5 
Cush.  40S. 


64  MUNICIPAL    POLICE    ORDINANCES.  [§  74. 

subject  depends  upon  the  existence  of  a  necessity  for  regu- 
lation, or  upon  some  condition  precedent,  the  ordinance, 
when  passed,  need  neither  recite  the  existence  of  the  ne- 
cessity nor  compliance  with  the  condition  precedent.*  Com- 
pliance with  conditions  precedent  appears,  or  should  appear 
in  the  records  of  council  proceedings,  and  the  fact  that  the 
council  has  passed  an  ordinance  is  conchisive  evidence 
that  it  considers  such  action  necessary  or  advantageous. 

§  74.  Scope  of  the  ordinance. — In  the  absence  of  stat- 
utory restrictions  there  is  no  limit  to  the  ground  which  an 
ordinance  may  be  made  to  cover.  A  compilation  of  pro- 
posed ordinances  might  be  passed  as  a  single  enactment  ^ 
Where  its  scope  is,  however,  restricted  to  "  one  subject,'' 
only  such  things  as  are  of  the  same  nature  may  be  con- 
tained in  the  same  ordinance.  Thus,  all  the  oft'enses  con- 
nected with  the  sale  of  intoxicating  liquors,  or  in  regard 
to  the  public  markets,  might  be  covered  by  one  enactment. 
The  ordinance  will  not  be  considered  too  extensive  so  long 
as  the  nature  of  each  and  every  {-rovision  is  reasonably  indi- 
cated by  the  catch  worils  use^l  in  the  title.  If  any  provision 
should  be  improperly  included,  the  rest  of  the  ordinance 
would  not  thereby  be  affected,  unless  the  pertinent  and  im- 
pertinent provisions  are  in  some  way  mutually  dependent 
on  one  another.  A  constitutional  provision  that  no  bill 
shall  contain  more  than  two  subjects  is  not  applicable  to 
ordinances.  The  term  bill  is  used  as  the  technical  designa- 
tion of  the  enactments  of  the  state  legislature.^ 

Contiguous  public  improvements,  or  improvements  asked 
for  in  the  same  petition  of  the  property  owners,  are  prop- 
erly provided  for  by  a  single  ordinance.* 

(1)  Young  V.  St.  Louis,  47  Mo.  402;  Coates  v.  New  York,  7  Cow.  585; 
Cronin  v.  People,  82  N.  Y.  318^  Bohle  v.  Stannard,  7  Mo.  App.  51  j 
Kiley  v.  Forsee,  57  Mo.  390;  Rex  v.  Harrison,  3  Burr.  1328. 

(2)  Garrett  v-  Janes,  4  East.  Rep.  609  (Md.,  1886). 

(3)  Humboldt  v.  McCoy,  23  Kan.  249. 

(4)  State  V.  Hudson,  29  N.  J.  104;  Works  v.  Lockport,  28  Hun,  9; 
^Yatson  V.  Chicago,  115  111.  78;  Dempsey  v.  Burlington,  66  la.  687. 


§  77.]  FORM   OF   THE   ORDINANCE.  65 

§  75.  Reference  to  existing  ordinances. — If  it  becomes 
uecessary  iu  the  framing  of  an  ordinance  to  adopt  an  exist- 
ing ordinance  in  toto,  or  to  incorporate  some  provision  of 
an  existing  ordinance,  it  may  be  done  by  referring  to  the 
prior  ordinance  or  section  of  an  ordinance,  without  incor- 
porating it  bodily  into  the  new  enactment.  Any  language 
is  sufficient  that  clearly  indicates  the  ordinance  referred  to, 
either  by  its  title  and  date  of  passage  or  by  its  date  of 
passage  alone,  when  only  one  ordinance  was  passed  on  the 
same  day.  Reference  may  then  be  had  in  an  ordinance  to 
any  extrinsic  matter  of  public  record,  to  the  general  statutes 
of  the  state,  to  the  corporate  charter,  to  the  system  of 
rules  and  regulations  adopted  by  a  municipal  board,  or  to 
the  regulations  adopted  by  the  council  itself  for  its  own 
government.^ 

§  76.  Time  of  going  into  efifect. — If  no  statutory  direc- 
tion is  made  as  to  the  time  when  an  ordinance  shall  go 
into  operation,  it  will  be  in  force  from  the  date  of  its  pas- 
sage; that  is,  the  expiration  of  the  prescribed  period  for 
publication.  This  would  be  true  even  though  the  statute 
provides  that  ordinances  shall  take  effect  from  the  time 
indicated  by  the  council,  and  the  council  fails  to  fix  a  time.* 
Although  seldom  necessary,  it  is  nevertheless  better  to 
always  indicate  in  the  ordinance  itself  when  it  shall 
operate.     By  so  doing  all  room  for  doubt  is  avoided. 

§  77.  Penalty. — An  ordinance  is  entirely  inoperative 
that  contains  no  penalty  clause.  After  the  act  has  been 
declared  a  misdemeanor,  some  provision  must  be  made,  in 
the  same  enactment,  conferring  jurisdiction  on  the  munic- 
ipal court  and  decreeing  a  definite  penalty.^    The  magis- 

(1)  Moran  v.  Lindell,  52  Mo.  229;  Baumgartner  v.  Hasty,  100  Ind. 
575. 

(2)  Commonwealth  v.  Brooks,  109  Mass.  355. 

(3)  Bowman  v.  St.  John,  43  111.  337. 

5 


66  MUNICIPAL   POLICE   ORDINANCES.  [§  78. 

trate  has  no  power  to  fix  the  penalty.     He  can  only  follow 
the  express  provision  of  the  ordinance.^ 

§  78.  Deflniteness  of  expression. — The  terms  of  ordi- 
nances will  not  be  construed  so  strictly  as  to  defeat  their 
purposes  if  definite  enough  to  be  understood  within  a 
reasonable  certainty.  Thus,  if  it  is  necessary  to  define 
certain  territorial  limits  within  which  an  ordinance  shall 
operate,  and  the  description  is  slightly  inaccurate  but  clear 
enough  to  show  the  legislative  intention,  that  intention 
will  be  followed.^  An  ordinance  is  sufficient  which  follows 
the  words  of  an  express  power;  for  instance,  under  a 
power  to  license  the  sale  of  "  small  ware,"  an  ordinance 
forbidding  the  sale  of  "  small  ware"  on  the  streets,  and  not 
defining  what  constitutes  "  small  ware"  is  definite  enough.* 
But  the  term  of  the  power,  or  the  expression  used  in  the 
ordinance,  must,  as  in  the  case  just  cited,  be  one  that  has  a 
recognized  and  definite  meaning.  An  ordinance  against 
keeping  a  bawdy  house  in  an  "indecent"  manner  is  definite, 
as  it  would  be  impracticable  to  state  what  is  indecency  in 
the  conduct  of  such  houses.*  And  it  is  sufficiently  definite 
to  say  that  no  one  shall  drive  on  the  streets  faster  than  at 
an  "  ordinary  trot."*  But  an  ordinance  that  merely  pro- 
hibits driving  at  an  "  immoderate "  speed,  is  indefinite. 
The  determination  of  what  constitutes  immoderate  speed 
should  not  be  left  to  the  court,  as  the  idea  of  no  two  men 
would  harmonize  on  that  point.^  So  it  is  too  indefinite  to 
prohibit  the  driving  "  any  drove  or  droves  of  horned  cattle, 
except  milch  cows,  through  any  of  the  public  streets." 
The  number  of  animals  constituting  a  drove  should  be 
specified.^ 

(1)  Melick  V.  Washington,  47  N.  J.  254;  State  v.  Zeigler,  3  Vroom, 
262. 

(2)  Poland  v.  Connelly,  16  0.  S.  64;  Hays  v.  Vincennes,  82  Ind.  178; 
Hyde  Park  v.  Borden,  94  111.  27. 

(3)  Harris  v.  Hamilton,  44  U.  C.  Q.  B.  641. 

(4)  Shreveport  u.  Roos,  35  La.  Ann.  1010. 

(5)  Nealis  v.  Hayward,  48  Ind.  19. 

(6)  Commonwealth  v.  Roy,  140  Mass.  432. 

(7)  McConvil  v.  Jersey  City,  39  N.  J.  38. 


§  82.]  FORM    OF   THE    ORDINANCE.  67 

§  79.  Definiteness  as  to  penalty. — As 'will  be  seen  later 
on,  there  is  some  disagreement  in  the  decided  cases  as  to 
whether  the  penalty  must  be  named  to  a  certainty,  or 
whether  certain  maximum  limits  may  be  set,  within  which 
the  court  may  exercise  its  discretion.  The  better  rule 
seems  to  be  tliat  it  is  definite  enough  to  set  limits  to  the 
amount  of  the  fine  that  may  lawfully  be  exacted,  or  the 
length  of  the  imprisonment  that  may  be  inflicted.^ 

§  80.  License  ordinances.^- An  ordinance  requiring  a 
license  should  specify  the  person  to  issue  it,  the  amount  to 
be  paid,  the  time  and  manner  of  payment,  its  duration, 
and  such  other  requirements  as  it  may  be  deemed  necessary 
to  prescribe,  for  as  little  discretion  as  possible  should  be 
reposed  in  the  ministerial  agent  who  issues  the  license.' 

§  81.  Ordinances  against  nuisances. — Under  power  to 
prevent  or  abate  nuisances,  the  ordinance  need  not  declare 
the  thing  or  class  of  things  ordained  against  to  be  nui- 
sances.^ The  ordinance  need  not  show  on  its  face  that  its 
subject-matter  is  within  the  terms  of  the  power.  Thus, 
under  power  to  prevent  the  depositing  of  filth  in  water 
channels,  an  ordinance  prohibiting  such  deposits  in  a 
designated  river  need  not  declare  that  thct  particular  river 
is  a  water  channel.* 

§  82.  Council  can  not  bind  its  successors. — An  ordi- 
nance imposing  a  license  fee  of  $500  can  not  lawfully  pro- 
vide that  during  the  time  for  which  any  license  is  granted 
under  that  ordinance,  no  other  license  shall  be  granted  for 
the  same  purpose  for  a  less  amount,  because  a  subsequent 
council,  or  the  same  council,  might  at   any  time  amend, 

(1)  Post,  §§  150,  151,  McConvil  v.  Jersey  City,  39  N.  J.  38;  Railroad 
Co.  V.  Deacon,  63  111.  91. 

(2)  Buell  u.  Quincy,  9  111.  App.  127;  Darling  v.  St.  Paul,  19  Minn. 
388.     Post,  §263;  ante,  §  13. 

(3)  Carthage  v.  Buckner,  4  111.  App.  317. 

(4)  Ogdensburg  v.  Lyon,  7  Lans.  215. 


68  MUNICIPAL   POLICE    ORDINANCES.  [§  82 » 

repeal,  or  supplant  that  ordinance  and  make  new  provisions. 
The  council  can  not  bind  or  hamper  the  free  exercise  of 
the  powers  vested  in  it  by  any  such  device/ 

(1)  WUUams  v.  West  Point,  68  Ga.  816. 


RULES   OF   VALIDITY.  ^-    -  69 


CHAPTER  VI. 

RULES  OF  VALIDITY. 

§    83   Introduction. 

§   84.  United  States  laws. 

§    85.  Regulation  of  commerce. 

§    86.  United  States  mails. 

§    87.  United  States  license  laws. 

§    88.  Consistency  with  the  laws  of  the  state. 

§    89    Main  conflict  as  to  minor  oflFenses. 

§    90.  The  punishment  may  be  greater. 

I    91.  Prosecution  under  either  law  no  bar  to  proceedings  under 

the  other. 
§    92.  Alabama. 
§    93    Colorado. 
§    94.  Connecticut. 
§    95.  Dakota. 
\    96.   Florida, 
g    97.  Georgia. 
§    98.  Illinois. 
^    99.   Indiana. 
§  100.  Iowa. 
^  101.   Kansas. 
§  102.   Kentucky. 
§  103.   Louisiana. 
§  104.    Maryland. 
§  105.   Massachusetts. 
§  106.  Michigan. 
I  107.   Minnesota. 
1 108.  Missouri. 
§  109.  Nebraska. 
§  LIO.  North  Carolina. 
§111.  New  Jersey. 
§  112.  New  York. 
§  113.   Ohio. 
§  114.  Oregon. 
§  115.   Rhode  Island. 
§  116.  South  Carolina. 
§  117.  Tennessee. 
§  118.  Texas. 
I  119.  Utah. 


70  MUNICIPAL    POLICE    ORDINANCES.  [§  84. 

§  120.  United  States  holdings. 

§  121.  Conflict  with  state  license  laws. 

§  122.  Policy  of  state  legislation  must  be  sustained. 

§  123.  What  is  the  law  of  the  land. 

g  124.  Power  derived  from  former  sovereignties. 

g  125.  Must  be  consistent  with  corporate  charter. 

§  126.  Other  requisites  of  validity. 

§  127.  Reasonableness. 

g  128.  When  discretion  of  council  final. 

g  129.  When  not  final. 

g  130.  Examples  of  reasonable  ordinances, 

g  131.  Examples  of  unreasonable  ordinances. 

gl32.  Restraint  of  trade. 

g  133.  What  is  a  restraint  of  trade. 

g  134.  What  is  not  a  restraint  of  trade. 

g  135.  Discrimination. 

g  136.  Examples  of  discrimination. 

g  137.  Discrimination  as  to  non-residents. 

g  138.  Once  void,  always  void. 

g  139.  Partial  invalidity. 

§  83.  Introduction. — In  earlier  days,  before  the  enact- 
ment of  municipal  governments  were  often  attacked,  courts 
were  not  aided  by  any  very  definite  rules  to  be  followed  in 
determining  the  validity  or  invalidity  of  ordinances.  It 
was  said  in  a  very  general  way  that  ordinances  or  by-laws 
must  be  fide,  legii  et  rationalU,  that  they  must  be  lawful  and 
reasonable  and  enacted  in  good  faith,  but  beyond  this 
courts  were  left  to  their  own  judgment.  Now  these  gen- 
eral expressions  mean  but  little  unless  their  scope  is  more 
accurately  defined,  and  in  the  light  of  modern  decisions 
many  distinct,  well  settled  rules  may  be  formulated,  which 
courts  will  follow  in  considering  any  point  raised  to  invali- 
date an  ordinance. 

§  84.  United  States  laws. — The  supreme  law  of  the 
land,  as  embodied  in  the  federal  constitution  and  in  the 
statutes  of  congress,  is  the  ultimate  test  to  which  all  infe- 
rior legislation,  whether  state  or  municipal,  is  subjected, 
and  any  ordinance  is  void  that  violates  its  provisions  or 
infringes  upon  its  guaranties.^     The  general  law  of  the  land 

(1)  Haywood  v.  Mayor,  12  Ga.  404. 


§  84.]  KULES    OF    VALIDITY.  71 

13  not  subject  to  exclusioa  or  alteration  by  the  exercise  of 
powers  of  local  legislation.^ 

The  constitutional  safeguard  that  no  man  shall  be  de- 
prived of  his  life,  liberty,  or  property,  except  by  due  pro- 
cess of  law,  is  as  binding  on  the  exercise  of  municipal  powers 
as  upon  state  legislation.  Although  the  nature  of  local 
regulation  is  such  that  more  summary  remedies  and  more 
rapid  procedure  must  be  resorted  to  to  make  it  effective 
than  are  lawful  or  customary  in  the  enforcement  of  those 
laws  which  are  operative  throughout  the  whole  state,  still 
the  constitution  must  be  observed  with  equal  strictness. 
Local  courts  acquire  no  exemptions  or  privileges  by  reason 
of  their  inferiority.  In  every  proceeding  which  may  result 
in  depriving  the  individual  of  his  personal  liberty,  the  right 
of  trial  by  jury  can  not  be  denied.  It  is  held,  however, 
that  imprisonment,  when  resorted  to  merely  to  enforce  the 
payment  of  a  previously  adjudged  fine,  is  not  such  impris-. 
onment  as  entitles  to  a  jury  trial.^  A  jury  trial  can  not  be 
demanded  when  the  only  direct  penalty  is  a  pecuniary  fine.^ 
The  judicial  determination  by  the  court  is  considered  due 
process  of  law.  Many  restrictions  attempted  to  be  placed 
on  personal  liberty  have  been  held  void  as  contrary  to  com- 
mon right,  and  beyond  the  legitimate  scope  of  police  regu- 
lation. Except  in  extreme  cases  the  law  presumes  that  the 
intentions  of  all  men  are  lawful  and  it  should  never  base  a 
punishment  upon  a  mere  supposition  that  a  person  intends 
to  violate  the  law.  Thus  "  the  knowingly  associating  with 
persons  having  the  reputation  of  being  thieves  and  prosti- 
tutes "  can  not  be  made  an  ofiense  against  the  community.* 
So,  an  ordinance  is  void  which  prohibits  females  from 
attending  or  waiting  in  a  dance-cellar,  bar-room,  or  place 
where  liquors  are  sold,  and  from  being  present  in  such 
places  in  any  capacity  between  six  o'clock  in  the  evening 
and  six  in  the  morning,  because  it  precludes  a  woman  from 

(1)  Williams  v.  Davidson,  43  Tex.  1.     See  page  34. 

(2)  Post,  §§  155, 181. 

(3)  Low  V.  Commissioners  R.  M.  Charlt.  316. 

(4)  St.  Louis  u.  Fitz,  53  Mo.  582;  nor  walking  with  prostitutes,  Cady 
V.  Barnesville,  4  Ohio  Law  Bull.  101.  

»'  T^NIVERSITY 


72  MUNICIPAL    POLICE    ORDINANCES.  [§  84. 

a  lawful  business.^  Any  thing  in  itself  immoral, as  visiting 
such  place  in  licentious  costumes,  or  dancing  in  a  public 
dance  hall  where  liquors  are  sold,  or  perhaps  even  serv- 
ing as  waiters  in  saloons,  might  well  be  prohibited.  But 
a  woman  could  lawfully  act  as  cashier,  musician,  door 
tender,  or  proprietress  of  such  a  place.  Discrimination 
between  the  sexes  is  lawful  and  commendable  in  such  vo- 
cations as  would  bring  them  into  contact  under  circum- 
stances peculiarly  advantageous  to  immoral  practices.  It 
is  contrary  to  common  right  to  ordain  a  penalty  against  the 
renting  of  houses  to  lewd  women,  without  regard  to  the  uses 
to  which  they  are  intended  to  be  put,  because  lewd  women 
have  just  as  much  right  to  occupy  habitations  as  virtuous 
women,  so  long  as  they  do  not  use  them  for  unlawful  pur- 
poses.^ It  would  be  equally  unjust,  even  under  the  broad- 
est power,  to  impose  a  penalt\'  upon  any  person  bearing  the 
reputation  of  being  a  prostitute  who  should  be  found  within 
the  city  limits.^ 

It  is  contrary  to  the  fourteenth  amendment  to  ordain 
that  the  hair  of  every  convict  shall  be  shorn,  without 
exempting  from  the  operation  of  the  ordinance,  or  at 
least  omitting  to  enforce  it  against  all  whose  natural  or 
artificial  growth  of  hair  is  held  sacred  by  them.^ 

Laws  of  police  may,  and  often  do,  disturb  personal  rights 
of  property  by  imposing  restrictions  and  conditions  upon 
the  right  to  own  certain  kinds  of  property  the  vicinity  or 
mode  of  uses  of  which  would  be  dangerous  to  health  or 
security,  and  without  providing  for  compensation.  All 
property  rights  are  subject  to  such  regulation,  but  the 
regulation  must  not  amount  to  total  deprivation.  For 
instance,  it  is  lawful,  under  power,  to  license  the  owner- 
ship of  dogs,  but  not  to  absolutely  prohibit  their  being 
kept.* 

(1)  In  re  Maguire,  57  Cal.  604. 

(2)  Milliken  v.  Weatherford,  54  Tex.  388. 

(3)  Buell  V.  State,  45  Ark.  336. 

(4)  Ah  Kow  V.  Nunan,  5  Sawyer,  552. 

(5)  Washington  v.  Meigs,  1  Mc Arthur,  53;  Hill  v.  Thompson,  48  N. 


§  85.]  RULES   OF   VALIDITY.  73 

Distress  can  not  be  resorted  to  to  collect  fines.^  ]S"or 
may  any  form  of  forfeiture  of  property  be  exercised,  unless 
after  due  notice  to  the  offender  and  allowing  him  an  oppor- 
tunity to  be  heard.  Ordinances  are  void  which  tend  to 
deprive  a  person  of  his  property,  or  to  create  a  charge 
against  it,  preliminary  to,  or  which  may  be  made  the  basis 
of,  taking  it  without  a  provision  afibrding  the  owner  due 
notice  of  the  pendency  of  proceedings.^ 

§  85.  Regulation  of  commerce  not  permitted. — It 
frequently  becomes  a  serious  question  whether  ordinances 
passed  to  regulate  some  matter  of  local  importance  do  not 
conflict  with  the  provision  of  the  constitution  which  pro- 
hibits the  states  from  regulating  inter-state  or  foreign 
commerce.  Any  ordinance  which  directly  aims  at  regu- 
lating commerce  is  plainly  void,  but  a  large  class  of  police 
measures  which  are  necessary  to  secure  the  protection, 
convenience,  and  health  of  cities  located  on  state  bound- 
aries, indirectly  affect  commerce,  without  for  that  reason 
being  void,  or  exceeding  the  competency  of  the  state 
government.^ 

It  is  just  that  the  citizens  of  a  community  should  be 
protected  against  frauds  practiced  upon  them  by  dealers 
who  represent  foreign  mercantile  houses,  and  who  are  in  a 
measure  beyond  the  control  of  local  authority  ;  hence  it  is 
lawful  to  demand  the  payment  of  a  license  fee  from  non- 
resident traders  who  vend  foreign  products,*  and  to  regu- 
late the  business  done  by  foreign  insurance  companies.' 
Nor  is  the  imposition  of  a  tax  on  all  goods  of  foreign  pro- 
duction, sold  on  commission  by  any  person  in  the  city, 
levying  a  duty  or  impost  within  the  meaning  of  the  con- 

Y.  Sup.  Ct.  481.     See  Water-works  v.   Bartlett,  8  Sawyer,  555;  s.  c,  16 
Fed.  Rep.  615;  In  re  Yick  Woo,  68  Cal.  294. 

(1)  Gumming  v.  Savannah,  R.  M.  Charlt.  26. 

(2)  Brown  v.  Denver,  7  Col.  305. 

(3)  St.  Louis  V.  Boffinger,  19  Mo.  13, 

(4)  Sears  v.  Commissioners,  36  Ind.  267,  In  re  Randolph,  6  Sawyer, 
295. 

(5)  People  V.  Thurber,  13  111.  554. 


74  MUNICIPAL   POLICE   ORDINANCES,  [§   85. 

^  stitutional  prohibition/     Sucii  an  ordinance  might,  how- 

ever, be  held  void  as  unjustly  discriminating  between 
foreigners  and'citizens  of  the  municipality,  and  the  charge, 
as  a  tax,  would  have  to  be  expressly  authorized  by  the 
state. 

Cities  located  on  the  seaboard  or  on  navigable  waters 
generally  have  power  to  regulate  the  public  wharves,  and, 
as  a  means  of  regulation,  wharfage  dues  are  frequently 
imposed  upon  the  vessels  that  use  them.  The  corporation 
is  under  expense  to  maintain  and  police  its  wharves,  and  it 
is  right  that  it  should  be  treated  in  this  respect  as  a  private 
individual,  warranted  in  demanding  a  reasonable  indemnity 
for  the  use  of  its  property ;  hence  it  is  held  that  the  levy 
of  a  reasonable  wharfage  fee  on  all'  packages  handled  over 
the  public  wharves  does  not  constitute  a  regulation  of  com- 
merce.^ 

A  license  fee  on  a  ferry  running  from  the  city  of 
Detroit  across  the  Detroit  river  to  the  Canadian  shore  is 
lawful,  and  if  reasonable  in  amount,  is  neither  a  tax  nor  a 
regulation  of  commerce.^  While  an  ordinance  taxing  every 
person  running  tow-boats  from  New  Orleans  to  the  Gulf  of 
Mexico  has  been  held  void.* 

Power  to  build  an  aqueduct  and  to  furnish  the  city  with 
water  does  not  authorize  any  obstruction  of  a  navigable 
river.* 

In  order  to  protect  the  health  and  for  the  convenience  of 
the  citizens,  it  is  lawful  to  declare  the  smoke  from  tugs  and 
vessels  using  the  navigable  water  adjacent  to  a  city  a  nui- 
sance, and  to  prescribe  a  penalty  for  failure  to  abate  the 
same.     It  is  only  the  effect  of  the  use  of  the  vessels  on  the 

(1)  Gumming  v.  Savannah,  R.  M.  Charlt.  26. 

(2)  Worsley  v.  New  Orleans,  9  La.  324;  First  Municipality  v.  Pease, 
2  La.  Ann.  538;  EUerman  v.  McMains,  30  La.  Ann.  190;  Packet  Co.  v. 
Keokuk,  95  U.  S.  80;   Packet  Co.  v.  St.  Louis,  100  U.  S.  423;  Vicks- 

*  burg  V.  Tobin.  100  U.  S.  430;  Packet  Co.  v.  Catlettsburg,  105  U.  S.  569; 
Leathers  v.  Aiken,  9  Fed.  Rep.  679. 

(3)  Chilvers  v.  People,  1 1  Mich.  43. 

(4)  Moran  v.  New  Orleans,  1 12  U.  S.  69. 

(5)  Bell  V.  Quebec,  2  Quebec,  305. 


§  88.]  RULES    OF    VALIDITY.  75 

convenience  of  the  community,  and  not  their  relations  to 
commerce  that  is  sought  to  be  regulated.' 

§  86.  United  States  mails. — An  ordinance  which  limits 
the  speed  of  all  vehicles  using  the  streets,  and  which  applies 
to  carriers  of  the  the  government  mail,  is  not  void  as  being 
against  the  federal  statute  punishing  willful  stoppage  of 
themails.^ 

§  87.  United  States  licenses. — The  fact  that  a  certain 
trade  or  business  is  specially  licensed  by  the  United  States 
does  not  prevent  a  corporation,  under  power  from  the  state, 
from  imposing  additional  restrictions,  even  to  total  prohibi- 
tion. The  licensing  of  lotteries  under  the  federal  law  does 
not  override  the  power  of  the  state  over  lotteries,  whether 
directly  exercised  or  by  delegation  to  municipal  corpora- 
tions.^ 

§  88.  Must  be  consistent  with  the  laws  of  the  state. 
According  to  the  American  theory  of  municipal  exist- 
ence, the  legislation  permitted  to  be  exercised  by  municipal 
corporations  is  a  mere  delegation  of  the  power  of  the  state, 
and  the  ordinances  enacted  by  virtue  of  this  delegated  au- 
thority are  as  much  a  part  of  the  general  scheme  of  legis- 
lation as  are  the  laws  of  the  state,  it  is  therefore  neces- 
sary that  they  should  be  consistent  with  the  state  laws.  If 
the  state  legislature  enacts  a  law  whereby  some  act  is  for- 
bidden, which  under  a  prior  law  was  expressly  permitted, 
the  courts  hold  that  the  subsequent  lasv,  as  the  latest  ex- 
pression of  the  legislative  will,  repeals  the  former  law  by 
implication ;  but  municipalities  have  no  power  to  repeal, 
directly  or  indirectly,  the  laws  of  the  state,  and  their  leg- 
islation must  accord  with  the  policy  of  the  legislation  of 
the  state.     If  the  only  measure  of  authority  were  the  terms 

(1)  Harman  v.  Chicago,  110  111.  400. 

(2)  United  States  v.  Hart,  Pet.  C.  C.  390;  s.  c,  3  Wheeler's  Criminal 
Cases,  304. 

(3)  Cohens  v.  Virginia,  6  Wheat.  264. 


76  MUNICIPAL    POLICE    ORDINANCES.  [§  89. 

of  the  charter,  there  would  often  be  ordinances  plainly 
within  the  granted  power,  but  irreconcilable  with  some 
Btate  law,  or  contrary  to  the  settled  policy  of  the  state,  a 
result  neither  lawful  nor  intended.  Some  charters,  bj^  ex- 
press language,  restrict  the  ordinances  that  may  be  passed 
to  such  as  are  consistent  with  the  laws  of  the  state.  Others 
-are  silent  upon  the  subject,  but  the  restriction  exists, 
whether  expressed  or  not,  and  becomes  very  important  in 
its  application. 

§  89.  Main  conflict  as  to  minor  offenses. — The  class 
of  general  legislation  with  which  ordinances  are  most  apt 
to  come  in  conflict  is  that  which  declares  certain  acts  or 
occupations  either  absolutely  unlawful  or  lawful  under  cer- 
tain restrictions.  The  police  powers  conferred  upon  munic- 
ipalities cover  the  same  class  of  acts  governed  by  the  state 
laws,  and  their  execution  must  be  effected  in  the  same 
manner,  by  penalties.  As  a  general  rule,  it  is  evident  that 
ordinances  are  void  whenever  contrary  to  the  laws  of  the 
«tate.'  The  difficulty  lies  in  determining  the  meaning  of 
the  phrase,  "  contrary  to  the  laws  of  the  state."  An  ordi- 
nance that  is  expressly  authorized  by  the  charter  or  organic 
statute  is  not  void  because  it  differs  from  the  state  law  on 
the  same  subject.  The  express  grant  of  power  to  the 
municipality  is  considered  to  be  an  ex[tre3sion  of  the  legis- 
lative intent  to  supersede  the  state  law  already  existing 
within  the  limits  of  the  corporation.^  Or,  it  is  expressive 
of  an  intent  to  punish  the  same  act  by  additional  penalties 
when  committed  within  certain  territorial  limits.  But  when 
no  additional  power  of  legislation  is  expressly  conferred,  it 
is  doubtful  whether  the  municipality  may,  by  its  ordinances, 
inflict  additional  penalties  to  those  already  prescribed  by 
the  state,  or  whether  it  may  legislate  at  all  upon  matters 
covered  by  the  general  statutes.  A  wrongful  act  is,  where- 
ever  committed,  an  injury  to  the  public  good,  and  contrary 

(1)  Sedgwick  on  Stat.  Law,  p.  469;  New  Orleans  v.  Phillipi,  9  La. 
Ann.  44;  Siloam  Springs  v.  Thompson,  41  Ark.  461;  Haywood  v. 
Mayor,  12  Ga.  404. 

(2)  Huflfsmith  v.  People,  8  Col.  175. 


§  89.]  RULES    OF    VALIDITY.  77 

to  the  peace  and  dignity  of  the  state.  But  the  very  founda- 
tion for  tiie  necessity  of  municipal  government  is  the  idea 
that  the  needs  of  certain  localities,  by  reason  of  density  of 
population,  or  other  circumstances,  are  more  extensive  and 
urgent  than  those  of  the  general  public  in  the  same  partic- 
ulars. The  obstruction  of  the  public  highways,  for  ex- 
ample, is  wrong,  but  a  certain  obstruction  on  a  road  little 
traveled  would  be  of  very  slight  inconvenience  to  the  pub- 
lic as  compared  with  the  inconvenience  of  the  same  ob- 
struction maintained  in  one  of  the  thoroughfares  of  a  large 
city,  and  the  necessity  of  preventing  and  removing  all  ob- 
structions to  travel  would  be  a  hundred-fold  more  urgent 
in  the  city.  It  would  be  a  greater  obstruction.  So,  loud 
and  noisy  conduct  on  the  streets  of  a  city  constitutes  a 
much  more  aggravated  offense  than  would  the  same  degree 
of  disorderly  behavior  in  a  sparsely-populated  rural  dis- 
trict. The  public  peace  and  good  order  are  disturbed  in 
each  case,  but,  in  the  one  case,  the  necessity  for  a  speedy 
and  effective  remedy,  and  the  actual  inconvenience  and  an- 
noyance, is  much  greater.  Some  acts  would  be  entirely 
innocent  in  one  locality  and  decidedly  reprehensible  in 
another.  In  this  sense,  then,  it  may  be  truly  said  that  the 
same  act  may  be  a  wrong  to  the  public  at  large  and  an  ad- 
ditional wrong  to  the  community  where  committed.  It 
would  be  an  offense  against  the  dignity  of  the  state,  and 
also  an  offense  against  the  good  order  of  the  municipality. 
The  act  is  single,  its  effect  double;  and  for  each  effect  there 
may  properly,  and  without  working  injustice  to  the  rights^ 
of  the  offender,  be  a  separate  remedy  or  penalty.  The  of- 
fense is  ])er  se  contrary  to  the  good  order  of  the  state,  and 
therefore  a  certain  punishment  is  prescribed  for  it  wher- 
ever committed;  but  the  offense,  if  committed  within  the 
limits  of  a  populous  town  or  city,  may  work  much  greater 
injury  to  the  local  peace  and  good  order,  and  it  is  proper 
that  the  town  or  city  should  have  its  remedy  and  a  separate 
right  to  punish  for  the  special  and  additional  wrong  done 
to  it.  Perhaps  on  no  subject  connected  with  municipal 
corporations  is  there  greater  diversity  of  authorit}^  than 
upon  the  extent  to  which  ordinances  may  lawfully  trespass. 


78  MUNICIPAL    POLICE   ORDINANCES.  [§  91. 

upon  the  territory  covered  b^'^the  laws  of  the  state.  Courts 
are  rightfully  jealous  of  the  rights  of  the  person,  and  are 
loth  to  hold  that  one  and  the  same  act  may  render  a  per- 
son twice  liable,  unless,  in  the  particular  case,  considera- 
tions of  public  good  are  plainly  superior  to  the  individual 
rights ;  but,  on  principle,  the  law  of  the  state  is  best  upheld 
and  subserved  by  permitting  municipal  corporations  to  ex- 
ercise separate  and  distinct  jurisdiction  over  offenses  of  a 
minor  character,  for  which  the  offender  is  already  amen- 
able to  the  state.  It  is  useless  to  attempt  to  reconcile  the 
numerous  decisions,  but  a  careful  consideration  of  the 
more  recent  holdings  leads  one  to  the  belief  that  their  ten- 
dency is  to  sustain  the  concurrent  jurisdiction  of  state  and 
municipality  under  their  respective  laws,  and  their  varying 
punishments  for  the  same  offense.  Especially  is  this  so  in 
the  states  whose  courts  have  had  frequent  occasion  to  con- 
sider the  question.^ 

§  90.  The  punishment  may  be  greater. — In  those 
states  where  this  double  legislation  is  allowed,  difficult 
questions  of  practice  arise.  It  is  doubted  whether  the 
municipalit}'  may  prescribe  heavier  penalties  than  the  state 
law  for  the  same  offense.  The  safer  course  is  to  restrict 
the  amount  of  the  fine,  or  the  length  of  the  imprisonment, 
to  the  limit  set  by  the  state  law ;  but  where  the  offense  is 
specially  obnoxious  to  the  municipality,  the  state  limit  is 
seldom  adequate,  and,  if  local  regulation  is  to  be  allowed 
at  all,  it  should  be  made  effective  and  the  punishment 
'proportionate  to  the  offense.  Here,  again,  the  states  are 
not  in  harmony. 

§  91.  Prosecution  under  either  no  bar  to  proceed- 
ings under  the  other. — It  is  inconsistent  with  the  theory 
of  double  penalties  to  hold  that  a  prosecution  under  either 
the  statute  or  ordinance  is  a  bar  to  proceedings  under  the 
other.    It  seems  to  be  the  better  opinion  that  either  remedy 

(1)  Bish.  Cr.  Law,  §  897a;  Bish.  Stat.  Cr.,  §§23,  25;  Cooley  (Jonst 
Lim.  199. 


§  95.]  RULES   OF   VALIDITY.  79 

may  be  pursued  without  barring  or  affecting  the  right  of 
recourse  to  the  other. 

§  92.  Alabama. — In  Alabama  ordinances  may  cover 
the  same  ground  as  the  state  law.^  It  is  held  that  an 
ordinance  punishing  assault  and  battery  does  not  in  any 
way  interfere  with  the  punishment  prescribed  by  the  law 
of  the  state,  and  may  be  enforced.^ 

§  93.  Colorado. — The  Colorado  courts  hold  the  same 
act  may  be  considered  as  a  double  offense,  against  the 
state  and  against  the  municipality,^  and  where  the  ordi- 
nance is  authorized,  but  no  limit  set  to  the  penalty,  the 
penalty  may  be  made  greater  than  that  prescribed  by  the 
state  law;*  and  an- exclusive  grant  of  power  to  the  munic- 
ipality repeals  the  state  law  within  the  municipal  limits 
as  soon  as  the  power  has  been  followed  by  the  enactment 
of  an  ordinance.^ 

§  94.  Connecticut. — There  is  one  decision  in  this  state 
which  tends  to  the  doctrine  that  additional  local  regulation 
is  not  permissible.  The  tow^n  of  Southport  had  express 
charter  power  to  prohibit  the  taking  of  oysters  in  the 
adjacent  waters.  The  state  atfterward  passed  a  statute 
covering  the  subject,  and  it  was  held  to  abrogate  the 
power  given  by  the  charter,  and  to  prevent  the  enforce- 
ment of  the  ordinance.^ 

§  95.  Dakota. — The  powers  granted  to  municipalities 
are  superadded  to  those  exercised  by  the  state  through  its 
laws,  and  both  the  general  law  and  the  ordinance  are 
enforceable.^ 

(1)  Mobile  V.  Rouse,  8  Ala.  515. 

(2)  Mayors.  Allaire,  14  Ala.  400, 

(3)  Hughes  V.  People,  8  Col.  536. 

(4)  Dietz  V.  Central,  1  Col.  323. 

(5)  Huffsmith  v.  People,  8  Col.  175. 

(6)  Southport  V.  Ogden,  23  Conn.  128. 

(7)  Elkpoint  v.  Vaughn,  1  Dak.  108. 


80  MUNICIPAL    POLICE    ORDINANCES.  »[§  98. 

§  96.  Florida. — The  conservative  doctrine  seenas  to  pre- 
vail in  Florida,  and  it  is  held  that  taxes  are  illegal,  if  levied 
to  assist  in  prosecuting  offenses  under  the  ordinances  which 
are  also  offenses  under  the  state  law.^ 

§  97.  Georgia. — All  the  earlier  cases  in  this  state  adhere 
to  the  rule  that  acts  can  not  be  punished  by  both  state  and 
city,  and  that  the  state  law  alone  may  be  enforced.^  But 
the  latest  expression  from  their  supreme  court  leans  the 
other  way,  but  holding  that  a  conviction  under  either  bars 
proceedings  under  the  other.  "  The  state  may  deal  only 
with  the  central  element  of  a  transaction  which  is  fringed 
around  with  adjuncts  that  ought  to  be  prohibited  by  ordi- 
nance, as  highly  mischievous  to  the  quiet  of  municipal 
society."^ 

§  98.  Illinois. — The  courts  of  Illinois  have  had  numerous 
occasions  to  deal  with  these  questions,  but  their  holdings 
are  far  from  harmonious.  The  first  decision  was  that 
authority  given  to  a  city  to  pass  ordinances  declaring 
the  sale  of  intoxicating  liquors  a  nuisance  does  not  sup- 
plant any  of  the  provisions  of  the  state  law  regulating  the 
sale.*  This  was  followed  by  decisions  to  the  effect  that  the 
amount  of  the  fine  or  the  severity  of  the  punishment  pre- 
scribed by  ordinance  need  not  be  limited  to  that  imposed 
by  the  state  law,  unless  the  corporation  is  restricted  in  that 
respect  by  the  express  terms  of  the  charter.*  Then  it  was 
held  that  the  remedies  were  plainly  concurrent,  unless  the 
municipal  power  is  made  exclusive  by  the  grant,  and  that 
punishment  under  either  is  a  bar  to  the  other.*    But  later^ 

(1)  Murphy  v.  Jacksonville,  18  Flor.  318. 

(2)  Mayor  v.  Hussey,  21  Ga.  80;  Adams  v.  Albany,  29  Ga.  56;  Roths- 
child V.  Darien,  68  Ga.  503;  Jenkins  v.  Thomasville,  35  Ga.  145;  Reich 
V.  State,  53  Ga.  73 ;  Vason  v.  Augusta,  38  Ga.  542. 

(3)  McRea  V.  Americus,  59.Ga.  168. 

(4)  Gardner  v.  People,  20  111.  430;  Kimball  v.  People,  20  111.  349. 

(5)  Petersburg  v.  Metzger,  21  111.  205 ;  Pekin  v.  Smelzel,  21  111.  464; 
also,  Amboy  v.  .Sleeper,  ol  111.  499;  Baldwin  v.  Murphy,  82  111.  486. 

(6)  Berry  v.  People,  36  111.  423. 


§  99.]  RULES    OF   VALIDITY.  81 

the  court  refused  to  consider  whether  the  remedies  are 
concurrent.^  For  a  time  the  court  seemed  to  favor  the 
theory  that  an  express  authorization  to  exact  ordinances 
upon  some  subject  regulated  by  the  statutes  supersedes 
the  state  law  pro  tanto,  and  that  it  can  not  be  enforced 
within  the  corporate  limits.^  Although  it  was  declared 
that  that  principle  is  to  be  applied  with  extreme  caution.* 
When  the  question  next  arose,  the  court  reviewed  all  the 
decisions,  and  adopted  what  may  now  be  considered  settled 
law  in  that  state.  It  held  that  the  same  act  may  constitute 
a  double  offense,  each  punishable  by  itself,  and  that  a  con- 
viction under  either  law  would  be  no  bar  to  a  conviction 
under  the  other,  for  the  accused  would  not  be  twice  in 
jeopardy  for  one  offense,  but  only  once  in  jeopardy  for  each 
offense.*  Still,  the  court  soon  took  occasion  to  avoid  the 
question,  in  a  case  where  the  ordinance  prescribed  a  smaller 
line  than  the  state  law.  It  held  that  the  statute  is  para- 
mount; that  its  full  punishment  must  obtain,  and  that  a 
conviction  under  the  ordinance  was  no  bar,  because  its 
penalty  was  inferior  in  degree.^ 

§  99.  Indiana. — The  earlier  holdings  are  against  the 
right  to  enact  ordinances  punishing  acts  that  are  already 
misdemeanors  against  the  state.^  But  the  later  decisions 
have  gone  to  the  other  extreme,  and  are  uniform  in  hold- 
ing, not  only  that  such  ordinances  may  be  passed,  but  that 
a  conviction  under  both  the  law  and  the  ordinances  is  per- 
missible.^ As  the  court  says  in  Waldo  v.  Wallace,  12  Ind. 
584 :  "  The  powers  which  are  exercised  by  a  city  govern- 

(1)  Fant  V.  People,  45  111.  258. 

(2)  Westgate  v.  Carr,  43  111.  450:  Woodward  v.  Turnbull,  41  111.  1. 

(3)  Seebold  v.  People,  86  111.  33. 

(4)  Wraggu.  Penn  Township  94  111.  11. 

(5)  Bobbins  v.  People,  95  111.  175. 

(6)  Madison  v.  Hatcher,  8  Blackf.  341 ;  Indianapolis  v.  Blythe,  2 
Ind.  75. 

(7)  Bogart  v.  New  Albany,  1  Ind.  38;  Indianapolis  v.  Fairchild,  1 
Ind.  315;  Ambrose  v.  State,  6  Ind.  3ol;  Waldo  v.  Wallace,  12  Ind. 
582,  Levy  v  State,  6  Ind.  281 ;  Williams  v.  Warsaw,  60  Ind.  457. 

6 


82  MUNICIPAL   POLICE   ORDINANCES.  [§  103. 

meiit  are,  it  thus  appears,  superadded  to  those  exercised  by 
the  state  iu  the  same  locality.  The  people  of  towns  and 
cities  are  governed  that  much  more  than  are  the  people  of 
the  state  generally.  This  is  deemed  a  necessary  incident 
to  a  dense  population." 

§  100.  Iowa. — Unless  specially  authorized,  corporations 
in  Iowa  can  not  punish  acts  that  are  made  penal  by  the 
state  law.^  But  when  authorized,  the  two  enactments 
subsist  together,  and  are  both  enforceable.^ 

§  101.  Kansas. — An  ordinance  passed  under  express 
power  repeals  the  state  law  as  to  the  limits  of  the  corpora- 
tion, if  plainly  irreconcilable  with  it.^  The  jurisdiction 
over  double  offenses  is  considered  concurrent,  the  first 
court  that  gains  jurisdiction  retaining  it  till  final  judg- 
ment, to  the  exclusion  of  the  other.^ 

§  102.  Kentucky. — The  enactment  of  an  ordinance  does 
not  supersede  the  state  law  on  the  same  subject.  Either 
law  may  be  enforced,  but  conviction  under  one  bars  pro- 
ceedings under  the  other.* 

§  103.  Louisiana. — Corporations  can  not,  under  general 
powers,  punish  acts  that  are  misdemeanors  under  the  stat- 
utes.^ And  in  case  of  express  power,  they  are  limited  to 
the  amount  of  the  fine  imposed  by  the  statute.^  A  license 
by  a  corporation  to  do  an  act  which  is  unlawful  under  the 
state  law  can  not  be  used  to  defeat  a  prosecution  under  the 
state  law,  but  might  be  considered  by  the  court  in  mitiga- 
tion of  the  penalty.^ 

(1)  Foster  v.  Brown,  55  la.  686;  Burlington  v.  Kellar,  18  la.  65. 

(2)  Bloomfield  v.  Trimble,  54  la.  399. 

(3)  State  V.  Young,  17  Kan.  414. 
'    (4)  Rice  V.  Kansas,  3  Kan.  141. 

(5)  March  v.  Commonwealth,  12  B.  Mon.  25. 

(6)  New  Orleans  v.  Miller,  7  La.  Ann.  651. 

(7)  State  V.  Chase,  33  La.  An.  287. 

(8)  State  V.  Caldwell,  3  La  Ann.  435. 


§  107.]  RULES    OF    VALIDITY.  8^ 

§  104.  Maryland. — In  Maryland  it  is  held  that  the 
power  exercised  under  ordinances  by  the  mayor  of  a  cor- 
poration is  a  part  of  the  police  power  of  the  state,  in  contra- 
distinction from  the  regular  judicial  power,  and  its  exercise 
does  not  extinguish  the  liaDility  for  an  offense  committed 
against  the  peace  and  dignity  of  the  state.^ 

§  105.  Massachusetts. — Municipalities  may,  within  ex- 
press powers,  impose  additional  regulations  upon  trades, 
occupations,  and  other  things  regulated  by  statute  and  not 
of  a  criminal  nature.  Thus,  the  statute  allows  bay-windows 
to  project  one  foot  only  from  the  side  of  buildings,  but  by 
ordinance  it  may  be  unlawful  to  allow  them  to  project  at 
all.^  An  ordinance  on  a  subject  covered  by  a  criminal 
statute  is  void.^ 

§  106.  Michigan. — It  seems  that  in  Michigan  no  ordi- 
nance that  is  directed  against  an  act  prohibited  by  state  law 
can  be  valid  unless  expressly  authorized  ;*  and  when  author- 
ized the  ordinance  in  no  way  supersedes  the  statute.* 

§  107.  Minnesota. — The  policy  of  Minnesota  is  as  far 
advanced  in  the  doctrine  of  double  control  as  that  of  any 
other  state.  Ordinances  may  be  enacted  against  the  public 
commission  of  any  crime  or  misdemeanor  as  tending  to  a 
breach  of  the  peace.®  The  ordinance  does  not  repeal  or 
supersede  the  statute,^  nor  the  common  law.^  Whatever 
offends  against  the  ordinance  also  offends  against  the  stat- 
ute. The  offenses  are  distinct  in  their  legal  character,  both 
as  to  the  jurisdiction  offended  against  and  as  to  tne  nature 
and  quality  of  the  offense.     A  conviction  of  either  offense 

(1)  Shafer  v.  Mumma,  17  Md.  331. 

(2)  Commonwealth  v.  Goodnow,  117  Mass.  114. 

(3)  Commonwealth  v.  Turner,  1  Cush.  493. 

(4)  Fennell  v.  Bay  City,  36  Mich.  186. 

(5)  Wayne  County  v.  Detroit,  17  Mich.  399. 

(6)  State  V.  Bruckhauser,  26  Minn.  301. 

(7)  State  V.  Oleson,  26  Minn.  507;  State  v.  Lee,  27  Minn.  445. 

(8)  State  V.  Crummey,  17  Minn.  72. 


84  MUNICIPAL   POLICE   ORDINANCES.  [§  111. 

is  no  bar  to  fhe  punishment  of  the  other/  nor  is  it  a  valid 
objection  that  the  penalty  prescribed  by  the  ordinance  is 
either  different  from  or  greater  than  that  attached  to  the 
offense  against  the  state.^ 

§  108.  Missouri. — Indictable  offenses  can  not  be  further 
punished  by  ordinance  under  general  powers  of  police,'  nor 
under  any  "  general  welfare  "  clause.*  But  under  power 
to  pass  ordinances  regulating  any  special  subject  of  munic- 
ipal concern  any  act  may  be  made  a  double,  offense,  and 
offenders  are  subject  to  prosecution  under  both  laws.*  The 
better  rule  seems  to  be  that  a  prosecution  under  either  does 
not  act  as  a  bar.®  If  the  power  given  is  expressly  exclusive, 
or  incompatible  to  the  state  law,  the  latter  is  thereby  pro 
tanto  superseded  ;  otherwise  the  exercise  of  the  municipal 
power  does  not  interfere  with  the  operation  of  the  state  law."" 

§  109.  Nebraska. — The  only  decision  is  a  general  one 
that  ordinances  may  be  directed  against  acts  that  are 
already  subject  to  penalties  under  state  laws.* 

§  110.  North  Carolina  courts  hold  that  the  power  to 
enact  ordinances'  is  subordinate  to  the  state  law  on  the 
same  subjects,  and  that  additional  burdens  imposed  by 
ordinances  are  unlawful.^  But  quaere,  as  to  whether  the 
legislature  might  not  expressly  authorize  a  corporation  to 
enact  additional  penalties  for  the  same  act.^" 

(1)  State  V.  Lee,  27  Minn.  445. 

(2)  State  V.  Ludwig,  21  Minn.  202. 

(3)  Jefferson  v.  Courtmire,  9  Mo.  683. 

(4)  Ex  parte  Bourgeois,  66  Mo.  663. 

(5)  St.  Louis  V.  Cafferata,  24  Mo.  94;  St.  Louis  v.  Bentz,  11  Mo.  61; 
Ex  parte  Kiburg,  10  Mo.  App.  442;  State  v.  Clarke,  54  Mo.  17;  Lin- 
neus  V.  Duskey,  19  Mo.  App.  20. 

(6)  St.  Louis  V.  Cafferata,  24  Mo.  94.  Contra,  State  v.  Cowan,  29 
Mo.  330. 

(7)  Baldwin  v.  Green,  10  Mo.  410;  State  v.  Binder,  38  Mo.  451.  As 
to  exclusive  power  of  city  of  Liberty,  see  State  v.  Gordon,  60  Mo.  383. 

(8)  Braunville  v.  Cook,  4  Neb.  101. 

(9)  Washington  v.  Hammond,  76  N.  C.  33;  State  v.  Langston,  88  N. 
C.  692;  State  v.  Brittain,  89  N.  C.  574;  State  v.  Keith,  94  N.  C.  933. 

(10)  State  V.  Brittain,  89  N.  C.  674. 


§  115.]  RULES   OF   VALIDITY.  85 

§  111.  New  Jersey. — An  early  case  holds  that  the  pas- 
sage of  an  ordinance  in  no  way  abrogates  a  similar  statute, 
but  doubt  was  expressed  as  to  whether  an  offender,  who 
had  been  punished  under  the  state  law,  would  be  liable  to 
a  subsequent  proceeding  under  the  ordinance.^  As  to  prop- 
erty rights,  a  grant  of  power  to  a  municipality,  inconsistent 
with  some  statute,  operates  to  repeal  the  statute  by  impli- 
cation within  the  corporate  limits.^ 

§  112.  New  York. — The  fact  that  the  state  law  regulates 
certain  things  done  does  not  prevent  the  corporation  from 
making  further  regulations  if  covered  by  its  powers.^  It 
matters  not  that  the  same  act  is  covered  by  a  general  stat- 
ute.^ The  ordinance  is  not  restricted  in  the  amount  of  the 
fine,  or  severity  of  the  punishment,  by  the  limit  of  the 
statute.^  And  a  conviction  under  the  ordinance  is  no  bar 
to  a  subsequent  prosecution  by  the  state.' 

§  113.  Ohio. — An  ordinance  covering  the  same  ground 
as  a  state  law,  and  not  inconsistent  with  it,  is  valid,  but  a 
fine  under  the  one  is  a  bar  to  proceedings  under  the  other.'^ 

§  114.  Oregon  is  also  among  the  most  advanced  states. 
Its  supreme  court  holds  that  the  same  act  may  constitute 
two  separate  offenses,  and  that  a  conviction  under  either 
ordinance  or  statute  is  no  bar  to  prosecution  under  the 
other.* 

§  115.  In  Rhode  Island  the  statutes  expressly  prohibit 

(1)  State  V.  Plunkett,  18  N.  J.  L.  5. 

(2)  State  V.  Clarke,  25  N.  J.  L.  54 ;  State  v.  Douglass,  33  N.  J.  L.  363  ; 
States.  Mills,  34  N.  J.  L.  180. 

(3)  Rogers  v.  Jones,  1  Wend.  261 ;  Mayor  v.  Hyatt,  3  E.  D.  S.  167. 

(4)  Polinsky  v.  People,  11  Hun,  390;  Brooklyn  v.  Toynbee,  31  Barb. 
282. 

(5)  Wood  V.  Brooklyn,  14  Barb.  425.  Contra,  Mayor  v.  Nichols,  4 
Hill,  209. 

(6)  People  V.  Stevens,  13  Wend.  341. 

(7)  Wightman  v.  State,  10  Ohio,  452. 

(8)  State  V.  Sly,  4  Oreg.  277;  State  v.  Bergman,  6  Oreg.  341. 


86  MUNICIPAL    POLICE    ORDINANCES.  [§  119. 

the  passage  of  any  ordinance  directed  against  acts  that  are 
already  punishable  under  the  state  law.^ 

§  116.  South  Carolina. — The  courts  of  South  Carolina 
held  at  first  that  an  ordinance  is  void  that  prescribes  a 
penalty  for  an  act  already  covered  by  the  state  law,^  but 
that  holding  was  overruled  later,  and  the  policy  of  the 
state  law  is  now  pretty  well  settled  that  it  is  lawful  for 
ordinances  to  cover  the  same  ground.^  Among  other 
grounds  for  adopting  that  policy  is  the  ingenious  argument 
that  because  the  same  act  frequently  comes  within  the  pro- 
hibition of  two  different  statutes,  it  is  equally  proper  that 
it  should  be  covered  by  an  ordinance  and  a  statute,  ordi- 
nances as  well  as  statutes  being  enacted  by  legislative 
authority.'* 

§  117.  Tennessee,  too,  held  at  first  to  the  strict  rule,* 
but  it  was  subsequently  declared  that  offenses  are  aggra- 
vated when  committed  within  the  limits  of  a  thickly 
settled  community ;  that  the  additional  ofifense  to  the  cor- 
poration should  be  punished,  and  that  ordinances  may, 
therefore,  be  lawfully  enacted  against  acts  punishable  by 
the  state.     And  conviction  under  either  law  is  no  bar.* 

§  118.  Texas.— The  theory  of  double  offenses  and  en- 
tirely separate  remedies  is  adopted  in  Texas  by  the  only 
decision  on  the  point.^ 

§  119.  The  Utah  court  says  that  it  sees  no  reason  why 
there  may  not  be  a  statute  and  an  ordinance  covering  the 
same  act  and  both  enforceable  f  still,  an  ordinance  against 

(1)  Baxter's  Petition,  12  R.  I.  13;  State  v.  Pollard,  6  R.  I.  290. 

(2)  Schroder  v.  Charleston,  3  Brev.  533. 

(3)  Heise  v.  Columbia,  (>  Rich.  404. 

(4)  State  V.  Williams,  1 1  S.  C.  288. 

(5)  Raleigh  v.  Dougherty,  3  Humph.  11. 

(6)  Greenwood  v.  State,  6  Baxt.  .567;  State  v.  Shelby,  16  Lea,  240. 

(7)  Hamilton  v.  State,  3  Tex.  A  pp.  643. 

(8)  Ex  parte  Douglass,  1  Utah,  108. 


§  121.]  RULES    OF    VALIDITY.  87 

assault  and  battery  was  soon  thereafter  declared  void  as 
trespassing  upon  the  state  law.^ 

§  120.  United  States.— The  general  doctrine  of  the 
federal  courts  is  well  expressed  by  Justice  Greer  in  the 
following  language : 

"Every  citizen  of  the  United  States  is  also  a  citizen  of  a 
state  or  territory.  He  may  be  said  to  owe  allegiance  to 
two  sovereigns,  and  may  be  liable  to  punishment  for  an 
infraction  of  the  laws  of  both.  That  either  or  both  may, 
if  they  see  fit,  punish  such  an  offender,  can  not  be  doubted. 
Yet  it  can  not  be  truly  averred  that  the  offender  has  been 
twice  punished  for  the  same  offense,  but  only  that  by  one 
act  he  has  committed  two  offenses,  for  each  of  which  he  is 
justly  punishable.  He  could  not  plead  the  punishment  by 
one  in  bar  to  a  conviction  by  the  other."^  And  this  doc- 
trine is  fully  adhered  to  when  the  apparent  conflict  is 
between  statutes  of  a  state  and  municipal  ordinances.^ 

It  would  be  much  better  if  the  various  state  tribunals 
were  more  harmonious  in  their  views  upon  this  much  dis- 
puted question,  but  their  tendency  and  the  burden  of  their 
authority  are  certainly  in  favor  of  the  adoption  of  the 
broader  rule. 

§  121.  Conflict  with  state  license  laws.— Statutes  and 
ordinances  come  into  further  conflict  in  regard  to  acts 
which  are  permitted  by  the  state  law  under  certain  re- 
strictions, and  either  prohibited  by  the  ordinance,  or  per- 
mitted under  additional  restrictions  to  those  imposed  by 
the  state.  The  true  test  to  be  applied  in  such  cases  is  based 
upon  the  nature  of  the  authority  for  the  passage  of  the 
ordinance.  When  the  state  law  allows  a  certain  traflac  to 
be  carried  on  under  a  license,  a  municipality  can  not  im- 
pose an  additional  license  under  its  general  welfare  or  po- 
lice power,  even  though  the  imposition  of  a  local  license 

(1)  People  V.  Brown,  2  Utah,  462. 

(2)  Moore  u.  People,  14  How.  13. 

(3)  McLaughlin  u.  Stephens,  2  Cranch  C.  C.  148;  United  States  v. 
Holly,  3  Cranch  C.  C.  656. 


88  MUNICIPAL   POLICE   ORDINANCES.  [§  121. 

would  be  entirely  free  from  objection,  were  there  no  state  law 
on  the  subject.^  "When  the  state  law  is  silent  the  corporation 
may  safely  exercise  any  regulation  within  the  legitimate 
scope  of  its  power.^  If  the  corporation  has  express  power 
to  license,  the  grant  is  considered  additional  to  the  power 
of  regulation  exercised  by  the  state,  and  the  local  license 
is  lawful  and  limited  in  amount  only  by  the  terms  of  the 
power.^  The  court  of  Georgia  seems  to  be  alone  in  con- 
sidering the  state  license  to  vest  such  property  rights  in 
the  licensee,  that  municipal  ordinances,  though  enacted 
under  express  power  subsequently  granted  to  the  corpora- 
tion, can  not  be  enforced  as  to  those  who  have  procured 
the  state  license.*  A  somewhat  similar  holding  was  made 
by  the  Illinois  court,  which  decided  in  a  late  case  that  a 
license  taken  out  under  an  ordinance  would  exempt  the 
licensee  from  an  additional  fee  imposed  by  a  subsequent 
statute.'^  These  decisions  do  not  mean,  however,  that  both 
laws  could  not  be  enforced  against  a  person  who  engages 
in  the  traffic  after  both  laws  have  gone  into  effect.  The 
ordinance  may  go  farther  than  the  statute  when  the  power 
is  plain.  So,  under  power  "  to  license,  regulate,  and  pro- 
hibit peddlers,"  a  corporation  may  require  a  license  from 
all  peddlers,  even  though  a  statute  of  the  state  exempts 
those  peddlers  from  any  license  tax,  who  vend  the  products 
of  the  state.®  But,  unless  the  power  is  plain,  an  ordinance 
can  not  require  inspection  when  the  statute  allows  the  sale 
of  a  certain  commodity  without  inspection.^     Such  permis- 

(1)  Grills  V.  Jonesboro,  8  Bax.  247;  Robinson  v.  Franklin,  1  Humph. 
156;  Savannah  v.  Charlton,  36  Ga.  460. 

(2)  Burlington  v.  Kellar,  18  la.  59. 

(3)  Deitz  V.  Central,  1  Col.  323;  Fuller  r.  State,  48  Ala.  291 ;  West  v. 
Greenville,  39  Ala.  69;  Greensboro  v.  Mullins,  13  Ala.  341;  Ex  part« 
Siebenhauer,  14  Nev.  365;  Simpson  v.  Savage,  1  Mo.  359;  Dill.  Mun. 
Corp.,  §  86;  New  Orleans  r.  Savings  Bank,  31  La.  Ann.  637. 

(4)  Chastain  v.  Calhoun,  29  Ga.  333;  Hill  v.  Atlanta,  54  Ga.  645; 
Baldwin  County  v.  Retailers,  42  Ga.  325. 

(5)  Swarth  v.  People,  109  111.  621. 

(6)  Ex  parte  Ah  Toy,  57  Cal.  92. 

(7)  New  York  v.  Nichols,  4  Hill,  209. 


§  121.]  RULES   OF   VALIDITY.  89 

sion  must,  however,  be  express,  and  cau  not  be  implied 
from  the  silence  of  the  state  law. 

The  existence  or  exercise  of  express  power  by  the  mu- 
nicipality does  not  impair  the  power  of  the  state  over  the 
same  subject  nor  excuse  any  one  from  strict  compliance  with 
the  state  law.^  Permission  from  the  corporation  is  no  defense 
against  the  statute.^  The  application  of  this  rule  must  be 
restricted  to  cases  where  the  ordinance  and  statutory  pro- 
visions are  concurrent  in  their  nature,  and  not  directly  in- 
consistent with  each  other.  Thus,  when  the  statute  ex- 
pressly permits  liquor  to  be  sold  or  drank  anywhere^  an  or- 
•dmance  restricting  its  consumption  to  the  place  where  sold 
would  be  inconsistent  and  void.^  Under  express  authority 
the  corporation  could  even  prohibit  that  which  the  state  law 
permits  under  restriction.*  The  grant  of  power  to  the  mu- 
nicipality of  a  nature  inconsistent  with  the  existing  state  law 
vrill,  if  express,  be  considered  as  the  latest  expression  of  the 
legislative  mind  and  supersedes  the  state  law.  If  the  priv- 
ilege of  granting  licenses  is  made  exclusive  in  the  corpora- 
tion, no  state  license  need  be  procured,^  and  this,  too,  even 
though  the  corporation  does  not  see  fit  to  exercise  its 
power.*  This  theory  is  certainly  most  consistent  with  the 
principle  of  local  regulation,  ana  yet  it  has  been  held  that 
the  grant  of  a  license  by  a  corporation,  under  exclusive 
power  to  grant  or  withhold  licenses,  is  not  interfered  with 
by  the  imposition  of  an  additional  burden  by  a  state  law.^ 

If  the  state  law  absolutely  prohibits,  the  corporation 
may  not  permit  under  license.^ 

(1)  Henback  v.  State,  53  Ala.  523;  Davis  v.  State,  2  Stew.  &  Port.  83 
Minturne  v.  Larue,  23  How.  435;  Dill.  Mun.  Corp.,  g  86. 

(2)  Davis  V.  State,  2  Stew.  &  Port.  83 

(3)  Adams  v.  Albany,  29  Ga.  57. 

(4)  Mayo  v.  James,  12  Gratt  17. 

(5)  Bennett  v.  People,  30  111.  389. 

(6)  Coulterville  v.  Gillen,  72  111.  599. 

(7)  Benefield  v.  Hines,  13  La.  Ann.  420;  Louisville  v.  McKean,  18  B. 
Mon.  10. 

(8)  Foster  v.  Brown,  55  Iowa,  686. 


90  MUNICIPAL    POLICE    ORDINANCES.  [§  123. 

§  122  Policy'bf  state  legislation  must  be  sustained. — 
In  order  that  municipal  ordinances  may  be  perfectly  con- 
sistent with  the  law  of  the  state,  the  construction  placed 
upon  the  wording  of  the  charter  or  organic  law  must 
accord  with  the  declared  policy  of  the  state  legislation. 
When,  for  example,  the  qualifications  of  voters  are  pre- 
scribed by  the  general  law,  the  municipality  can  not  add 
to  those  qualifications  by  ordinance.^  If  the  state  consti- 
tution declare  that  only  ad  valorem  taxes  shall  be  levied, 
and  power  is  given  to  the  corporation  to  tax  "  all  sales  of 
horses  made  by  drovers,"  a  tax  of  one  dollar  for  each 
horse  sold  is  void  because  not  ad  valorem?  So,  when  the 
state  law  guarantees  freedom  of  religious  opinion  to  all 
citizens,  it  would  be  unlawful  to  enact  an  ordinance  requir- 
ing shops  to  be  closed  on  Sunday,  without  excepting  from 
its  operation  persons  who  observe  some  other  day  of  the 
week;^  and  an  ordinance  is  void  which  discriminates  in 
effect  against  persons  of  color.* 

With  regard  to  ordinances  of  a  punitive  nature,  it 
must  be  observed  that  the  corporation  is  restricted  in  their 
passage  to  any  definition  of  the  thing  or  act  ordained 
against  that  is  found  in  the  statutes.  For  example,  the 
state  law  makes  gaming  an  offense  and  defines  it.  The 
ordinance  must  be  directed  against  the  act  of  gaming  as 
thus  defined.* 

§  123.  What  constitutes  the  law  of  the  land. — We 
have  seen  that  ordinances  must  accord  with  the  federal 
constitution  and  laws  and  with  tbe  legislation  of  the  state 
in  which  the  municipality  is  situated.  Sometimes  an 
exercise  of  corporate  power  is  attempted  to  be  supported 
by  decisions  of  the  English  courts,  on  the  theory  that 
English  common  law  forms  a  part  of  the  law  of  our  land 

(1)  Bell  V.  Man  vers,  3  U.  C.  C.  P.  349. 

(2)  Livingston  v.  Albany,  41  Ga.  22;  CuUinan  v.  New  Orleans,  28  La. 
Ann.  102. 

(3)  Canton  v.  Nist,  9  0.  S.  439. 

(4)  Cooper  v.  Savannah,  4  Ga.  68. 

(5)  In  re  Lee  Tong,  18  Fed.  Rep.  253. 


I  l^2b.]  RULES    OF    VALIDITY.  91 

in  the  absence  of  any  definite  expression  of  policy  by  our 
courts  or  legislatures.  Generally  speaking,  it  would  only 
be  misleading  to  give  weight  to  English  authorities,  be- 
cause many  of  the  powers  exercised  by  the  municipalities 
of  that  country  rest  solely  upon  prescription,  a  source  not 
recoo-nized  in  America.^  Still  in  cases  where  no  applicable 
decision  or  expression  of  legislative  policy  can  be  found 
except  in  England,  the  English  decision  would  be  con- 
sidered in  construing  corporate  powers  unless  clearly 
inapplicable.^ 

§  124.  Powers  derived  from  former  sovereignties. 
Some  of  the  older  American  cities  may  still  have  property 
rights  which  had  their  origin  under  the  laws  of  some  for- 
eign power,^  but  they  jnay  exercise  only  such  legislative 
powers  as  are  granted  by  and  consonant  with  the  laws  of 
the  United  States,  or  its  members.  New  Orleans,  for 
instance,  existed  as  a  municipality  under  the  government 
of  France  and  under  that  of  Spain,  but  it  may  now  exer- 
cise only  the  powers  granted  under  the  code  of  Louisiana, 
and  its  ordinances  must  conform  to  the  policy  of  existing 
American  legislation.  It  contains  none  of  the  riglits 
formerly  exercised  under  its  French  charter,  and  none  that 
were  sanctioned  by  the  Spanish  cabildo,  unless  confirmed 
by  its  present  organic  law.* 

§  125.  The  corporate  charter. — The  most  obvious 
restriction  upon  the  passage  of  ordinances  is  that  they 
must  be  consonant  with  the  provisions  of  the  municipal 
charter  or  organic  law.  Both  their  aim  and  form  must 
fall  within  the   powers   conferred.^     The   charter   is   the 

(1)  Herzo  v.  San  Francisco,  33  Cal.  134. 

(2)  Claiborne  County  v.  Brooks,  111  U.  S.  400. 

(3)  For  example,  San  Francisco,  Hart  v.  Burnett,  15  Cal.  530. 

(4)  Bank  v.  Navigation  Company,  3  La.  Ann.  294.  For  special  hold- 
ings  as  to  other  cities,  see  (New  York)  Mayor  v.  Ryan,  2  E.  D.  S.  368,- 
(Detroit)  Cooper  v.  Alden,  1  Harr.  Ch.  72. 

(5)  Camden  u.  Mulford,  26  N.  J.  49;  Carr  v.  St.  Louis,  9  Mo.  190; 
Mitchell  V.  Wiles,  59  Ind.  364;  St.  Louis  v.  Kase,  9  111.  App.  409;  Smith 


^2  MUNICIPAL   POLICE   ORDINANCES.  [§  128 

primary  test  of  the  validity  of  an  ordinance.  In  the  appli- 
cation of  this  test  as  well  as  the  others  just  considered  it 
is  always  better  to  err  in  restricting  than  in  extending  the 
«cope  of  corporate  powers. 

§  126.  Other  requisites  of  validity. — The  restrictions 
«o  far  noted  are  those  based  upon  constitutional  and  stat- 
utory laws  of  express  character,  and  are  of  much  easier  ap- 
plication than  those  further  restrictions  which  are  based  on 
general  principles  of  law,  and  depend  for  their  expression 
upon  the  decisions  of  courts. 

§  127.  Reasonableness. — The  restriction  most  fre- 
quently appealed  to  by  those  desirous  of  defeating  ordi- 
nances is  that  ordinances  must  be  reasonable.  And  of  all 
restrictions  this  is  the  least  capable  of  precise  formulation 
and  definition.  An  ordinance  to  be  void  for  unreasonable- 
ness must  be  plainly  and  clearly  unreasonable.^  There 
must  be  evidence  of  weight  that  it  took  inception  either 
in  a  mistake,  or  in  a  spirit  of  fraud  or  wantonness  on  the 
part  of  the  enacting  body.^ 

§  128.  When  the  discretion  of  the  council  should  be 
final. — If  an  express  power  is  given  to  a  corporation  to 
enact  ordinances  of  a  certain  kind,  the  legislature  thereby 
trusts  to  the  discretion  of  the  council  to  determine  just 
how  far  they  shall  go  within  the  limits  imposed ;  and  there 
is  every  presumption  that  the  council  are  not  only  actuated 
by  pure  motives,  but  that  they  are  so  familiar  with  the 
mischief  to  be  remedied,  and  with  the  defects  of  the  prior 
regulations,  as  to  be  the  best  possible  judges  of  the  neces- 
sity for  the  enactment  of  the  new  law,  and  of  the  extent 
to  which  it  is  advisable  to  exercise  the  power  granted.    The 

V.  Knoxville,  3  Head,  245;  St.  Louis  v.  Weber,  44  Mo.  547;  Cummings 
V.  Fitch,  40  0.  S.  56 ;  Rex  v.  Cutbush,  4  Burr.  2204;  Hoblyn  v.  Rex,  2 
Bro.  P.  C.  329;  Dill.  Mun.  Corp.  §  319. 

(1)  White  V.  Kent,  11  0.  S.  550;  Neier  v.  Railway  Ck).,  12  Ma 
App.  25. 

(2)  Sargent  v.  Railroad  Co.,  1  Handy  (Ohio),  52. 


§  laO.j  RULES   OF    VALIDITY.  93. 

council,  and  not  the  court,  is  the  proper  repository  of  this 
public  trust,  and  it  should  be  a  plain  case  indeed  to  justify 
the  latter  in  interfering  with  the  determination  of  the 
council,  or  of  questioning  either  their  motives  or  the  co- 
gency of  their  reasons  for  enacting  the  ordinance.  Surely, 
when  an  ordinance  is,  upon  its  face,  plainly  within  the- 
terms  of  an  express  power,  the  court  ought  not  to  interfere 
on  the  ground  of  unreasonableness.  It  is  restricted  to  con- 
sider the  constitutionality  of  the  act  granting  the  power. 

§  129.  When  not  final. — When  the  ordinance  is  passed 
in  order  to  exercise  some  power  necessary  to  effectuate  an 
express  grant,  or  under  some  implied  or  inherent  power 
which  it  is  the  policy  of  the  courts  to  allow  municipalities 
to  exercise,  or  under  a  power  accompanied  by  no  express 
direction  governing  the  mode  of  its  exercise,^  then  it  is 
proper  for  the  court,  in  cases  of  doubt,  to  look  beyond  the 
facS  of  the  ordinance  in  order  to  inquire  if  it  is  reasonable. 
And,  in  fact,  as  is  evidenced  by  the  best  considered  decis- 
ions on  the  subject,  the  evidence  is  looked  into  in  those 
cases  alone.  The  reasonableness  of  an  ordinance  ought 
never  to  be  questioned  when  it  is  enacted  in  accordance: 
with  the  terms  of  an  express  power. 

§  130.  Examples  of  reasonable  ordinances. — Decis- 
ions as  to  the  reasonableness  of  ordinances  will  be  particu- 
larly considered  under  the  subsequent  treatment  of  the 
various  special  subjects  of  municipal  control,^  but  an 
enumeration  here  of  some  leading  cases  will  aid  in  fixing 
the  general  rule.  The  following  ordinances  have  been 
held  reasonable  : 

Railroads:  That  railroad  trains  shall  not  be  run  at  a 
greater  rate  of  speed  than  six  miles  per  hour  within  the 
corporate  limits;^  regulating  the  speed  of  trains  and  wagons, 

(1)  Kirkham  v.  Russell,  76  Va.  956;  Ex  parte  Chin  Yan,  60  Cal.  83.. 

(2)  Post.  §§  211  to  292. 

(3)  Knobloch  v.  Railway  Company,  31  Minn.  402. 


94  MUNICIPAL   POLICE   ORDINANCES.  [§  130. 

within  the  city  ;^  that  trains  shall  not  be  allowed  to  stand 
across  a  public  street  longer  than  two  minutes  at  one  time  f 
that  railroad  companies  shall  keep  flagmen  at  street  cross- 
ings during  the  day,  and  that  they  shall  protect  the  street 
crossings  by  colored  lights  at  night  ;^  that  boys  and  other 
persons  not  connected  with  the  management  of  the  rail- 
road, except  passengers,  and  those  about  to  take  passage, 
shall  not  get  on  trains  or  cars  within  the  city  limits;*  that 
street  railway  companies  shall  report  quarterly  the  number 
of  passengers  carried;^  requiring  railroads  to  pave  the  sides 
of  the  streets  through  which  they  run.^ 

Vehicles :  That  hackney  carriages  shall  not  stand  within 
thirty  feet  of  any  public  place  of  amusement  f  fixing  the 
rates  of  fare  that  may  be  charged  by  hackney  coachmen  f 
prescribing  routes  of  travel  for  omnibus  lines,  and  prohib- 
iting their  passing  over  other  streets;'  fining  persons  who 
impede  the  progress  of  street  cars  by  allowing  their  ve- 
hicles to  stand  on  the  tracks  ;^''  requiring  hackmen  who 
stand  near  railroad  depots  to  obey  the  orders  of  the  police  ;^^ 
imposing  a  moderate  tax  on  all  vehicles  that  are  used  on 
the  streets  ;^^  assigning  certain  stands  for  vehicles  used  for 
hire." 

Markets:  That  wagons  loaded  with  produce  shall  not 
stand  in  the  market-place  for  over  twenty  minutes  during 
certain  hours  ;^*  prohibiting  those  who  were  not  licensed 
occupants  of  market  stalls  from  oflfering  fresh  meat  for 

(1)  Commonwealth  v.  "Worcester,  3  Pick.  461 ;  Pennsylvania  Co.  v. 
James,  32  *P.  F.  Smith,  202. 

(2)  State  V.  Jersey  City,  37  X.  J.  348. 

(3)  D.  L.  &  W.  R.  R.  Co.  V.  East  Orange,  41  N.  J.  127. 

(4)  Beardenv.  Madison,  73  Ga.  184. 

(5)  St.  Louis  V.  St.  Louis  Railway  Co.,  89  Mo.  .44. 

(6)  City  V.  Erie  Passenger  R.  R.  Co.,  7  Phila.  321. 

(7)  Commonwealth  v.  Robertson,  5  Cush.  438. 

(8)  Commonwealth  v.  Gage.  1 14  Mass.  328. 

(9)  Commonwealth  v.  Stodder,  2  Cush.  562. 

(10)  State  V.  Foley,  31  la.  527;  s.  c,  7  Am.  Rep.  166. 

(11)  St.  Paul  V.  Smith,  27  Minn.  364. 

(12)  St.  Louis  V.  Green,  70  Mo.  562. 

(13)  Commonwealth  v.  Mathews,  122  Mass.  60. 

(14)  Commonwealth  v.  Brooks,  100  Mass.  355. 


§  130.]  RULES   OF  VALIDITY.  95 

sale  in  less  that  quarters;^  fixing  market-hours  at  from 
dawn  to  nine  o'clock  a.  m.,  and  prohibiting  the  sale  of  fresh 
beef  at  other  times  in  quantities  less  than  a  quarter.^ 

Sale  of  commodities:  Prescribing  that  gunpowder  shall 
not  be  kept  in  quantities  over  a  certain  number  of  pounds, 
that  it  shall  be  kept  in  copper  canisters,  and  imposing  a 
fine  of  from  $50  to  $500  for  each  violation  of  the  ordi- 
nance;^ prohibiting  the  sale  of  milk  without  a  license  from 
the  mayor  ;*  requiring  a  license  to  sell  certain  commodities 
in  certain  streets;®  requiring  a  $200  license  fee  from  each 
butcher;®  requiring  all  imitations  of  lacteal  products  to  be 
plainly  marked;^  prescribing  any  regulations  to  prevent  the 
adulteration  of  milk;^  providing  for  and  regulating  the 
weight  and  price  of  bread  f  and  requiring  the  weight  of 
the  loaf  to  be  stamped  thereon,  the  bread  to  be  forfeited 
if  the  provision  is  neglected  '^^  restricting  the  slaughter  of 
animals  in  certain  localities;"  forbidding  sales  of  goods  on 
Sunday  ;^^  requiring  a  license  fee  from  persons  engaged  in 
peddling  goods  from  house  to  house  ;^'  and  from  those  who 
stand  on  the  streets  to  sell  papers  ;^^  Wiixt  every  horse  and 
cattle  dealer  shall  take  out  a  license  and  furnish  a  certificate 
of  moral  character.^® 

Intoxicating  liquors :  Levying  a  tax  of  $100  on  each  re- 

(1)  St.  Louis  V.  Weber,  44  Mo.  547. 

(2)  BowUng  Green  v.  Carson,  10  Bush  (Ky.)  164. 

(3)  Williams  v.  Augusta,  4  Ga.  509. 

(4)  People  V.  Mulholland,  82  N.  Y.  324. 

(5)  Nightingale,  Petitioner,  11  Pick.  168. 

(6)  St.  Paul  V.  Colter,  12  Minn.  41. 

(7)  State  V.  Addington,  77  Mo.  110. 

(8)  Polinsky  v.  People,  73  N.  Y.  65. 

(9)  Mayor  v.  YuiUe,  3  Ala.  137. 

(10)  In  re  Nasmith,  2  Ont.  192. 

(11)  Slaughter-House  Laws,  16  Wall.  63;  Ex  parte  Heilbron,  20  Cent, 
L.  Jour.  183. 

(12)  Gabel  v.  Houston,  29  Tex.  335. 

(13)  State  Center  v.  Barenstein,  66  la.  249. 

(14)  Commonwealth  v.  Elliott,  121  Mass.  367. 

(15)  St.  Louis  V.  Knox,  6  Mo.  App.  247. 


96  MUNICIPAL   POLICE   ORDINANCES.  [§  130. 

tailer  of  spirituous  liquors  ;^  placing  the  tax  at  $500  f  pun- 
ishing the  sale  of  liquors  in  quantities  of  a  quart  or  more 
to  be  drunk  on  the  premises;^  punishing  retail  grocers  who 
keep  spirituous  liquors  on  their  "premises;*  that  dram  shops 
shall  close  at  nine  o'clock  p.  m.  f  closing  them  from  lOiSO 
p.  M.  till  5  A.  M.  f  and  from  midnight  till  five  a.  m.  ;'  requir- 
ing tliat  there  shall  be  no  avenue  of  direct  communication 
between  billiard  rooms  and  places  where  liquors  are  sold.* 

Other  occupations:  Requiring  an  annual  license  fee  of 
$500  from  express  companies  whose  business  extends  be- 
yond the  state,  and  $100  on  all  others  f  requiring  restau- 
rants to  close  at  ten  o'clock  in  the  evening;^"  and  confec- 
tioneries to  remain  closed  on  Sunday  after  nine  o'clock  in 
the  morning;"  prohibiting  gambling  and  bawdy  houses 
from  being  located  in  certain  parts  of  the  city  ;^^  prohib- 
iting work  in  laundries  at  night  within  certain  territorial 
limits.^ 

Health  and  security :  Prohibiting  persons  from  allowing 
their  cattle  to  run  at  large;"  compelling  boats  laden  with 
produce  apt  to  become  putrid  to  anchor  in  the  adjoining 
waterway  until  inspected  and  permitted  to  unload  by  a  city 
officer ;"  punishing  vagrants  ;^^  preventing  the  establishment 

(1)  Mayor  r.  Beasly,  1  Humph.  426. 

(2)  Perdue  v.  Ellis,  18  Ga.  586. 

(3)  Adams  v.  Albany,  29  Ga  56. 

(4)  Council  V.  Ahrens,  4  Strob.  L.  241 ;  Heisembrittle  v.  Charleston^ 
2  McMull.  233. 

(5)  Smith  V.  Mayor,  3  Head,  245. 

(6)  State  V.  Welch;  36  Conn.  215. 

(7)  Bright  v.  Toronto,  12  U.  C.  C.  P.  433. 

(8)  Neilly  v.  Owen  Sound,  37  U.  C.  Q.  B.  289. 

(9)  Express  Co.  v.  Mobile,  49  Ala.  404. 

(10)  State  V.  Freeman,  38  N.  H.  426. 

(11)  St.  Louis  V.  Cafferata,  24  Mo.  94, 

(12)  Ex  parte  Chin  Yan,  60  Cal.  78. 

(13)  Soon  Hingv.  Crowley,  113  U.  S.  703;  Barbierv.  Connelly,  113  U. 
S.  27. 

(14)  Commonwealth  v.  Patch,  97  Mass.  221 ;  Commonwealth  v.  Bean^ 
14  Gray,  52. 

(15)  Dubois  V.  Augusta,  Dudley  (Ga.),  30. 

(16)  St.  Louis  v.  Bentz,  11  Mo.  61. 


§  131.]  RULES    OF  VALIDITY.  97 

of  new  burial-grou  nds  within  the  city  limits  ;^  prohibiting 
unlicensed  persons  from  removing  offal  and  garbage  ;2  im- 
posing a  fine  of  ten  dollars  upon  the  ovt^ner  of  any  dog 
that  shall  bite  any  one.^ 

Miscellaneous  ordinances:  Prohibiting  the  owners  of  lots 
abutting  on  the  lake  shore  from  removing  sand  ;^  prohib- 
iting the  erection  of  awnings  over  the  sidewalks;*  fixing 
a  price  for  the  privilege  of  tapping  the  public  sewers;^  re- 
quiring adjoining  owners  to  clear  the  snow  from  the  side- 
walks;^ prohibiting  the  erection  of  wooden  buildings 
within  certain  territorial  limits;^  requiring  a  license  for 
building;^  prohibiting  any  one  from  delivering  sermons, 
lectures,  or  addresses  in  the  public  common  without  first 
having  obtained  permission  from  the  council  ;^°  making  it 
unlawful  to  keep  draw-bridges  open  more  than  ten  minutes 
at  one  time,  and  fining  vessels  that  neglect  to  observe  the 
bridge  signals  ;^^  restricting  laundries  to  ce^ain  kind  of 
building.^^ 

§  131.  Examples  of  unreasonable  ordinances. — 
Among  others,  the  following  ordinance  regulations  have 
been  declared  unreasonable,  and  for  that  reason  void  : 

Railroads  :  That  a  railroad  company  shall  keep  a  flag- 
man by  day  and  a  red  light  by  night  at  a  street  crossing 
which  is  not  particularly  dangerous.^^ 

(1)  Charleston  v.  Church,  4  Strob.  L.  306. 

(2)  Vandine,  Petitioner,  6  Pick.  187;  s.  c,  17  Am.  Dec.  351. 

(3)  Commonwealth  v.  SteflFee,  7  Bush,  161. 

(4)  Clasen  v.  Milwaukee,  30  Wis.  316. 

(5)  Pedrick  v.  Bailey,  12  Gray,  161. 

(6)  Fisher  v.  Harrisburg,  2  Grant  Cas.  291. 

(7)  Goddard,  Petitioner,  16  Pick.  504.  Contra,  Gridley  v.  Blooming- 
ton,  88  111.  555. 

(8)  King  V.  Davenport,  98  111.  305 ;  Baumgartner  v.  Hasty,  100  Ind. 
575. 

(9)  Welch  V.  Hotchkiss,  39  Conn.  140, 

(10)  Commonwealth  v.  Davis,  140  Mass.  485. 

(11)  Chicago  V.  McGinn,  51  111.  266. 

(12)  In  re  Yick  Woo,  68  Cal.  294. 

(13)  Railway  Co,  v.  Jacksonville,  67  111.  38;  s.  c,  16  Am.  Rep.  611. 

7 


98  MUNICIPAL    POLICE    ORDINANCES.  [§  131. 

Vehicles :  That  porters  and  hackmeu  shall  not  approach 
within  twenty  feet  of  a  depot,  when  their  presence  is  ex- 
pressly sanctioned  by  the  railroad  company.^ 

Markets :  Prescribing  a  penalty  for  each  hour  that  a 
wagon  is  kept  within  the  limits  of  the  public  market.^ 

Sale  of  commodities :  That  fruit  and  lemonade  shall  not 
be  sold  at  temporary  stands  without  a  license ;'  imposing 
a  fee  of  five  cents  on  each  sale  of  produce;*  that  producers 
shall  pay  an  annual  fee  of  twenty-five  dollars  for  the  privi- 
lege of  vending  their  produce  on  the  streets ;'  forbidding 
the  sale  of  goods  on  Sunday  f  imposing  a  license  fee  on  all 
hucksters  f  forbidding  sales  by  auctioneers  except  to  the 
highest  bidder  ;^  prohibiting  auction  sales  after  sundown.' 

Intoxicating  liquors:  That  licensed  venders  of  spirits 
shall  not  sell  between  six  o'clock  p.  m.  and  six  o'clock  A. 
M.;^"  requiring  druggists,  under  a  heavy  penalty  for  neglect, 
to  furnish  a  quarterly  statement,  verified  by  afiidavit,  of 
the  kind  and  quantity  of  liquors  sold ;"  prohibiting  sales  of 
liquors  in  less  quantities  than  twenty-eight  gallons.'- 

Other  occupations:  Permitting  one  person,  to  the  ex- 
clusion of  others,  to  carry  on  a  dangerous  business ;''  pro- 
hibiting the  slaughtering  of  animals  on  one's  own 
premises  unless  in  a  regular  slaughter-house;'*  restricting 
all  slaughtering  to  a  singlg  specified  building;"  prohibiting 
non-residents   from   taking  fish    from   a   navigable   river 

(1)  Napman  v.  People,  19  Mich.  352. 

(2)  Commonwealth  v.  Wilkins,  121  Mass.  356. 

(3)  Barling  v.  West,  29  Wis.  307;  s.  c,  9  Am.  Rep.  576. 

(4)  Kip  V.  Patterson,  2  Dutch.  298. 

(5)  St.  Paul  V.  Traeger,  25  Minn.  248;  s.  c,  33  Am.  Rep.  462. 

(6)  Shreveport  V.  Levy,  26  La.  Ann.  671  ;  s.  c,  21  Am.  Rep.  553. 

(7)  Dunham  v.  Rochester,  5  Cow.  462.  • 

(8)  In  re  Martin,  27  Ark.  467. 

(9)  Hayes  v.  Appleton,  24  Wis  542. 

(10)  Ward  v.  Greeneville,  8  Baxter,  228;  s.  c,  35  Am.  Rep.  700. 

(11)  Clinton  v.  Phillips,  58  111.  102;  s.  c,  11  Am.  Rep.  62. 

(12)  Commonwealth  v.  Turner,  I  Cush.  493. 

(13)  Mayor  v.  Thorne,  7  Paige,  261. 

(14)  Wrefordv.  People,  14  Mich.  41. 

(15)  Chicago  v.  RumpflF,  45  111.  90. 


§  131.]  RULES    OF   VALIDITY.  99 

within  the  city  limits  ;^  requiring  a  license  fee  for  each 
milk-cart  f  requiring  owners  of  theaters  to  pay  a  police 
officer  for  attendance  at  every  performance.^ 

Health  and  security:  Compelling  the  removal,  from  the 
city,  of  a  steam  engine  that  is  not  per  se  a  nuisance  f  pro- 
hibiting a  gas  company  from  opening  paved  streets  for  the 
purpose  of  making  new  connections  f  forbidding  the  use 
of  a  certain  kind  of  approved  fire-extinguishers  at  fires  f 
compelling  the  removal  of  property  not  shown  to  be  a 
nuisance  '^  punishing  those  whose  animals  are  found  run- 
ning at  large  in  the  streets  f  giving  authority  to  police 
officers  to  make  arrests  without  warrants  for  ofifenses  not 
committed  in  their  presence  f  punishing  those  who  associ- 
ate with  persons  of  bad  character;^''  limiting  the  burial  of 
the  dead  to  one  locality,  the  prohibited  territory  being  un- 
reasonably large ;"  subjecting  private  burial-grounds  to  the 
control  of  the  city  sexton  -^'^  forbidding  the  renting  of 
buildings  to  prostitutes,  without  regard  to  the  use  to  which 
they  intend  to  put  them  ;'^  prohibiting  the  use  of  steam- 
boats not  provided  with  a  spark-arrester  '*  as  effectual  as 
the  same  can  be  made  by  any  means  known  or  in  use."'* 

Miscellaneous  ordinances :  Requiring  the  arrest  of  all  free 
negroes  found  on  the  streets  after  ten  o'clock  p.  m.-/^  levying 
a  tax  to  build  a  sidewalk  in  an  uninhabited  part  of  the 
city,  where  it  would   not   be   couuected  with  other  side- 

(1)  Hayden  v.  Noyes,  5  Conn.  391. 

(2)  Chicago  v.  Bartree,  IlL  App.  (1887). 

(3)  Waters  v.  Leech,  3  Ark.  110. 

(4)  Baltimore  v.  Radecke,  49  Md.  217;  s.  c,  33  Am.  Rep.  23'./. 

(5)  Commissioners  v.  Gas  Company,  12  Pa.  St.  318. 

(6)  Insurance  Co.  v.  O'Connor,  27  La.  Ann.  371. 

(7)  Fieri  v.  Mayor,  42  Miss.  493. 

(8)  Collins  V.  Hatch,  18  Ohio,  522. 

(9)  Pesterfield  v.  Mayor,  3  Coldw.  205. 

(10)  St.  Louis  V.  Fitz,  53  Mo.  582. 

(11)  Selectmen  v.  Murray,  16  Pick.  121. 

(12)  Bogart  u.  Indianapolis,  13  Ind.  134. 

(13)  Milliken  v.  Weatherford,  54  Tex.  189. 

(14)  Atkinson  v.  Transportation  Co.,  60  Wis.  141. 

(15)  Mayor  v.  Winfield,  8  Humph.  707. 


100  MUNICIPAL   POLICE   ORDINANCES.  [§  132. 

walks  ;^  requiring  the  expulsion  from  the  public  school  of 
any  child  that  shall  decline,  under  its  parents'  direction,  to 
study  some  branch  of  the  curriculum  ;-  excluding  a  scholar 
from  promotion  in  the  public  schools  for  inability  to  pass 
an  examination  in  a  study  which  his  parents  do  not  desire 
him  to  pursue;^  providing  that  the  city  sexton,  whose  fees, 
are  paid  out  of  the  estates  of  deceased  persons,  shall  ex- 
pend $500  on  the  public  burying-grounds,  and  bury 
paupers  free  of  charge  ;*  granting  a  franchise  to  maintain 
a  toll-bridge  across  a  river ;'  requiring  consent  of  mayor  to 
march  through  the  streets  in  procession  with  flags,  torches, 
and  music.® 

§  132.  Restraint  of  trade. — At  common  law,  any  one 
might  carry  on  any  trade  in  any  place  unless  some  custom 
forbade.^  Any  restraint  of  trade  is  burdensome  to  the  com- 
munity at  large,  and  especially  so  to  those  engaged  in  the 
trade  or  occupation  that  is  restrained.  But  many  trades 
are  of  such  a  nature  that  they  may  easily  be  made  injurious 
or  dangerous  to  health  and  security,  if  improperly  con- 
ducted. Any  regulation  of  trade  that  has  restraint  as  its. 
object  is  unlawful,  but  any  degree  of  restraint  is  permissi- 
ble that  is  actually  necessary  to  secure  and  maintain 
health  and  good  order.  A  simple  regulation  for  police 
purposes  alone  is  valid.*  "A  law  which  unnecessarily  and 
oppressively  restrains  a  citizen  from  engaging  in  any  traflfic, 
or  disposing  of  his  property  as  he  may  see  fit,  although 
passed  under  the  specious  pretext  of  a  preservation  of  the 
health  of  the  inhabitants,  would  be  void.  Such  a  law 
would  be  unreasonable,  and  would  deprive  the  people  of 

(1)  Corrigan  v.  Gage,  68  Mo.  541. 

(2)  Rulison  v.  Post,  79  Ind.  567. 

(3)  Trustees  v.  People,  87  111.  305. 

(4)  Beronjohn  v.  Mobile,  27  Ala.  58. 

(5)  "Williams  v.  Davidson,  43  Tex.  1. 

(6)  Frazee's  Case,  Mich.  (Oct.  28,  1886),  35  Alb.  L.  J.  C. 

(7)  Clark  v.  Le  Creu,  9  B.  &  C.  o2 ;  Hesketh  v.  Braddock,  3  Burr. 
1847;  Bosworth  v.  Hearne,  2  Str.  1085;  Harrison  v.  London,  1  Burr. 
16 ;  London  v.  Godraan,  1  Burr.  12. 

(8)  Mobile  v.  Yuille,  3  Ala.  137. 


§  132.]  RULES   OF   VALIDITY.  101 

the  rights  guaranteed  to  them  by  the  organic  law  of  the 
land.  But  if  the  regulation  or  prohibition  contains  nothing 
more  than  the  necessary  limitation,  and  is  passed  in  good 
faith  for  the  purpose  of  preserving  the  good  health  and 
abating  nuisances,  it  is  not  liable  to  objection.  No  man  has 
an  inalienable  right  to  produce  disease  or  trade  in  that 
which  is  noxious."^ 

If  the  degree  of  the  restraint  is  reasonable,  and  its  ne- 
cessity obvious,  the  ordinance  imposing  it  is  valid.  But  the 
restraint  must  not  be  such  as  to  create  a  monopoly,  or  to 
entirely  prevent  any  trade,  the  exercise  of  which  is  useful 
to  humanity,  so  long  as  properly  conducted.  Monopolies 
are  obnoxious  to  the  spirit  of  our  laws,  and  should  not, 
even  indirectly,  be  created.^ 

'  It  tends  to  create  a  monopoly,  to  designate  a  single  place 
as  a  market-house  and  to  prohibit  the  sale  of  fresh  meats 
at  any  other  place,  at  any  time,  and  in  any  quantity  f  to 
grant  the  exclusive  right  of  maintaining  a  market-house  to 
one  person  for  a  term  of  years,  and  to  confine  the  sale  of 
produce  to  his  house.* 

Privileges  that  have  once  been  conferred  can  not  subse- 
quently be  made  exclusive,  unless  additional  authority  has 
in  the  meantime  been  granted.®  A  grant  of  an  exclusive 
privilege  of  selling  water  to  the  city  for  a  term  of  twenty 
years,  creates  a  monopoly.®  Monopolies  may  be  created  by 
•delegating  police  powers  to  persons  Or  corporations.^ 

Thus,  no  one  person  ought  to  have  the  exclusive  right  to  run 
omnibus  Imes,^  or  to  carry  on  the  business  of  slaughtering.' 

(1)  State  V.  Fisher,  52  Mo.  174. 

(2)  Gas  Light  Co.  v.  Saginaw,  2S  Fed.  Rep.  529;  Tugman  v.  Chicago, 
78  111  405;  Railway  Co.  v.  Railway  Co.,  24  Fed.  Rep.  306;  State  v.  Cin. 
Gas  Light,  etc.,  Co.,  18  0.  S.  262;  Live  Stock  Associations.  Crescent 
City,  1  Abb.  U.  S.  388;  Gas  Company's  Appeal  (Pa.),  4  Atl.  Rep.  733. 

(3)  Bloomington  v.  Wahl,  46  111.  489. 

(4)  Gale  v.  Kalamazoo,  23  Mich.  344. 

(5)  Johnson  v.  Crow,  87  Pa.  St.  184. 

(6)  Davenport  v.  Kleinschmidt,  13  Pac.  Rep.  249. 

(7)  Louisville  v.  Weible  (Ky.),  1  S.  W.  Rep.  605. 
<8)  Logan  v.  Pyne,  43  la.  524 

<9)  Chicago  v.  RumpfF,  45  111.  90. 


102  MUNICIPAL   POLICE    ORDINANCES.  [§  134. 

Still,  express  power  to  grant  exclusive  privileges  may  be 
exercised.  Thus,  a  mere  power  to  license  gives  no  right  to 
create  a  monopoly  by  confining  the  license  granted  to  one 
or  a  few  persons  ;  but,  where  the  corporation  has  power  to 
grant  or  refuse  a  license,  an  exclusive  license  may  be  con- 
ferred.^ 

Business  investments,  upon  which  the  prosperity  of  a 
community  depends,  should  be  hampered  by  as  few  re- 
straints as  are  compatible  with  the  health  and  security  of 
the  people ;  and  whenever  any  doubt  exists  as  to  the  ur- 
gency of  the  necessity,  or  the  dangerous  character  of  the 
occupation,  it  should  be  resolved  against  the  validity  of  the 
restraint, 

§  133.  What  is  a  restraint  of  trade. — The  following 
ordinance  regulations  have  been  declared  invalid  as  in  re- 
straint of  trade :  A  prohibition  of  aution  sales  after  sun- 
down;"  requiring  petty  grocers  to  procure  licenses;'  pro- 
hibiting the  sale  of  lemonade,  nuts,  and  fruit,  at  temporary 
stands;*  imposing  numerous  conditions  upon  the  right  to 
sell  fresh  meat  outside  of  the  market  stalls;'^  limiting  the 
number  of  carts  that  should  be  allowed  to  be  used,  and  re- 
quiring licenses  f  under  power  to  regulate  the  ringing  of 
bells  and  the  crying  of  goods  and  other  commodities  for 
sale  at  auction  or  otherwise,  an  ordinance  unnecessarily 
restrains  trade  which  forbids  all  sales  of  watches  and  other 
jewelry  after  sunset  by  public  auction.' 

§  134.  What  is  not  a  restraint  of  trade. — It  is  not  a 
restraint  of  trade  to  impose  reasonable  regulations  on  the 
speed  of  railway  trains  f  or  to  require  all  persons  selling 

(1)  Ferry  Co.  v.  Davis,  48  Iowa,  133.     See  further,  post,  §  256  et  seq. 

(2)  Hayes  v.  Appleton,  24  Wis  542. 

(3)  Dunham  v.  Rochester,  5  Cow.  462. 

(4)  Barling  v.  West,  29  Wis.  307. 

(5)  St.  Paul  V.  Laidler,  2  Minn.  190. 

(6)  Player  v.  Vere,  Raym.  288. 

(7)  Rochester  v.  Close,  35  Hun,  209. 

(8)  Knobloch  v.  Railway  Co.,  31  Minn.  402. 


§  135.]  RULES    OF    VALIDITY.  103 

liquors  to  obtain  a  license,  druggists  included  ;^  or  to  pro- 
hibit the  maintenance  of  slaughter-houses  within  certain 
limits  f  or  to  impose  a  license  fee  of  four  dollars  a  day  upon 
auctions;^  or  to  prohibit  the  sale  at  retail  of  fresh  meat  out- 
side of  market-stalls  ;^  or  to  prohibit  such  sale  except  under 
license;^  or  to  require  a  license  from  persons  engaged  in 
carrying  coal  from  places  within  to  places  without  the 
city  f  or  to  require,  under  penalty  for  omission,  every  hack- 
man  and  drayman  to  obtain  a  license  ;^  or  to  require  coal, 
when  sold,  to  be  weighed  by  the  city  weigher  f  or  to  require 
street  railway  companies  to  make  quarterly  reports  of  the 
number  of  passengers  carried;*  or  to  impose  licenses,  if 
moderate,  on  all  business,  under  general  power  to  license 
trade  and  occupations.^" 

§  135.  Discrimination. — Municipal  ordinances  are  passed 
by  a  body  that  represents  the  whole  community,  and  for 
the  purpose  of  regulating  matters  which  affect  the  general 
welfare,  and  their  provisions  should,  so  far  as  practicable, 
affect  each  member  of  the  community  alike.  Ordinances 
should  neither  favor  nor  discriminate  against  any  person  or 
class  of  persons,  or  any  particular  portion  of  the  municipal 
territory.  Their  burdens  and  their  benefits  should  rest 
equally  upon  all.  Laws  of  a  municipality,  like  the  laws  of 
a  state,  should  be  uniform  and  of  a  general  operation  within 
the  corporate  limits,  and  any  unnecessary,  distinct  discrim- 
ination between  persons,  classes,  orlocations,  will  invalidate 
them.  Slight  inequalities  of  benefit  are  unavoidable  in 
proper  police    regulation.     "A   slight,  incidental  damage 

(1)  Rochester  V.  Upman,  19  Minn.  108. 

(2)  Cronin  v.  People,  82  N.  Y.  318 ;  Pierce  v.  Bartrum,  Cowp.  270. 

(3)  Fretvvell  v.  Troy,  18  Kan.  272. 

(4)  Davenport  v.  Kelly,  7  la.  103. 

(5)  Brooklyn  r.  Cleves,   Hill    &   Den.   Sup.    231 ;  Strike  v,  Collins, 
54  L,  T.  Rep.  (N.  S:)  152. 

(6)  Gartside  v.  East  St.  Louis,  43  111.  47. 

(7)  Brooklyn  v.  Breslin,  57  N.  Y.  591. 

(8)  Stokes  V.  New  York,  14  Wend.  87. 

(9)  St.  Louis  Railway  Co.  v.  St.  Louis,  89  Mo.  44. 

(10)  Ex  parte  Frank,  52  Cal.  606. 


104  MUNICIPAL   POLICE   ORDINANCES.  [§  135. 

done  to  one  individual,  or  even  more,  could  never  be  held 
to  be  an  oppression  or  wrong  such  as  would  invalidate  an 
ordinance  of  a  city.  It  must  certainly  be  one  working  a 
general  and  public,  or  a  permanent  and  continued  wrong 
to  a  private  individual  or  class."^  Penal  ordinances  must 
be  general  in  their  effect;  they  must  affect  all,  who  are 
thereby  restricted,  equally.  If  directed  against  single  per- 
sons or  concerns,  or  against  part  only  of  a  class,  they  are 
contrary  to  common  right  and  void.^  The  effect  of  one 
ordinance  that  is  general  in  form  may  in  reality  be  as  dis- 
criminating as  one  that  is  in  terms  partial.  Regard  must 
be  had  to  the  reason  of  ordinances.  It  is,  for  example, 
proper  to  impose  a  license  tax  on  all  liquor  dealers  in  order 
to  prevent  wholly  irresp'onsible  persons  from  engaging  in 
the  traffic,  and  to  thereby  preserve  the  public  peace  ;  but 
if  the  corporation  extends  over  districts  which  are  wholly 
unsettled  and  remote  from  the  thickl}''  inhabited  parts  of 
the  city,  it  would  be  manifestly  unjust  to  subject  a  liquor 
dealer  located  in  such  district  to  the  same  degree  of  restric- 
tion as  other  dealers.  Such  an  ordinance  would  impose  a 
burden  largely  out  of  proportion  to  the  beueiits  of  police 
protection  which  it  affords.^  On  the  other  hand,  an  ordi- 
nance that  is  prima  facie  discriminating,  because  governing 
the  conduct  of  a  specific  railroad,  is  still  valid  so  long  as 
there  are  no  other  railroads  to  be  regulated.* 

In  order  that  burdens  may  in  fact  be  equably  imposed,  it 
is  often  necessary  to  classify  the  citizens  of  a  municipality 
for  the  purposes  of  police  regulation.  The  same  principle 
is  recognized  in  state  legislation  by  the  classification  of 
municipalities  according  to  their  size.  The  classification 
must,  however,  be  well  defined  and  based  on  some  reasou- 

(1)  Knoxville  V.  Bird,  12  Lea.  121 ;  s.  c  ,  47  Am.  Rep.  326;  Gale  v.  Kal- 
amazoo, 23  Mich.  344;  s.  c,  9  Am.  Rep.  80;  Chicago  v.  Rumpfl',  45 
111.  90. 

(2)  Baton  Rouge  v.  Cremonini,  3G  La.  Ann.  247 ;  De  Bere  v.  Gerard, 
4  La.  Ann.  30;  First  Municipality  v.  Blineau,  3  La.  Ann.  688;  Nashville 
V.  Althrop,  5  Coldw,  554. 

(3)  Salt  Lake  City  v.  Wagner,  2  Utah,  400. 

(4)  Railroad  Co.  v.  Richmond.  96  U.  S.  521. 


§  136.]  RULES   OF   VALIDITY.  105 

able  distinction.  If  the  members  of  each  class  are  then 
treated  alike  the  ordinance  is  unobjectionable.^  If  a  regu- 
lation of  some  business  is  the  object  of  the  ordinance,  the 
amount  or  extent  of  the  business  done  may  be  taken  as  a 
basis  of  classification ;  or,  in  regard  to  other  subjects,  the 
degreee  of  ability  to  work  injury  to  the  rights  of  the  com- 
munity. But  no  man  can  object  to  an  ordinance  directed 
against  a  certain  business  because  he  has  less  business  than 
his  competitors,  claiming  that  discrimination  should  be 
made  in  his  favor.  His  opportunities  are  equal  to  those 
of  all  others,  and  the  right  to  classify  lies  solely  within  the 
discretion  of  the  local  legislators. 

§  136.  Examples  of  discrimination. — A  tax  ordinance 

directed  against  dram-shops  must  include  all  dram-shops 
within  its  operation,  either  equally  or  by  classes.^  Taxes 
for  general  revenue  must  be  levied  equally  on  all  persons 
according  to  the  tax  basis  adopted  by  the  state.^  No  dis- 
tinction can  be  made  between  goods  in  store  and  goods 
in  transitu.*'  So,  an  ordinance  regulating  the  observance  of 
the  Sabbath  can  not  exclude  Jews  from  its  operation,  be- 
cause in  the  eyes  of  the  law  all  persons  are  equal,  and  a 
man's  religious  belief  is  in  no  way  violated  by  prohibiting 
him  to  engage  in  certain  occupations  on  a  certain  day.* 
Power  to  regulate  the  lighting  of  the  streets  does  not 
authorize  an  ordinance  granting  an  exclusive  right  to  light 
the  streets,  for  every  man  may  lawfully  provide  street 
lights  in  front  of  his  own  premises  if  he  does  not  disturb 
the  public  easement.^  The  same  principle  goes  to  prevent 
a  corporation  from  imposing  any  discretion  in  its  minis- 
terial agents  who  are  to  issue  licenses  for  certain  trades  or 
occupations.     It  is  proper  for  the  council  to  direct  them 


(1)  Ex  parte  Siebenhauer,  14  Nev.  365;  post,  §§  268,  287;  County 
of  Amador  V.  Kennedy,  11  Pac.  Rep.  757. 

(2)  Zanone  v.  Mound  City,  103  111.  553. 

(3)  Fitch  V.  Pinchard,  5  111.  69. 

(4)  Ex  parte  Frank,  52  Cal.  606. 

(5)  Shreveport  v.  Levy,  26  La.  Ann.  671. 

(6)  Gas  Light  Co.  v.  Saginaw,  28  Fed.  Rep.  529. 


106  MUNICIPAL    POLICE    ORDINANCES.  [§  137. 

to  follow  certain  general  classifications,  to  refuse  licenses  to 
those  who  are  incompetent,  irresponsible,  or  of  bad  reputa- 
tion, but  discretion  vested  in  the  mayor  to  thus  classify 
applicants  might  easily  be  so  exercised  as  to  result  in  un- 
just discrimination  between  races,  or  between  persons  of 
exactly  the  same  responsibility  and  competency.^ 

§  137.  Discrimination  as  to  non-residents. — Munici- 
palities are  not  in  any  sense  close  corporations.  They  are 
not  vested  with  rights  of  local  legislation,  in  order  that 
they  may  arrogate  to  their  own  inhabitants  additional 
rights  and  privileges  to  those  enjoyed  by  other  citizens  of 
the  state  or  nation.  Neither  may  rights  be  denied  to  its 
citizens  and  still  allowed  to  he  exercised  by  non-residents 
who  may  come  within  the  corporate  limits.  Discrimina- 
tion against  residents  is  equally  odious  to  discrimination  in 
their  favor.  If  an  ordinance  declares  that  the  tires  of 
wagon-wheels  shall  be  of  a  certain  width  according  to  the 
weight  carried,  non-residents  who  pass  through  the  corpo- 
ration, or  who  reside  more  than  two  miles  from  the  limits, 
can  not  be  excluded  fri)m  its  operation.'^  It  has  been  held, 
however,  in  Kentucky,  that  an  ordinance  may  discriminate 
against  citizens  of  the  municipality,  however  peculiar  its 
provisions.^  A  grant  of  exceptional  immunities  to  non- 
residents might,  it  is  true,  be  of  advantage  to  the  munici-' 
pality  by  attracting  trade,  but  the  furtherance  of  the 
material  interests  of  the  people  is  not  one  of  the  legitimate 
objects  of  corporate  organization.  Without  express  legis- 
lative authority,  municipal  corporations  are  restricted  to 
matters  of  government  and  of  police  regulation. 

Under  power  to  regulate  fisheries,  an  ordinance  prohibit- 
ing all  persons  not  residents  of  the  town  from  fishing 
within  the  corporate  limits  is  void.^  It  is  unlawful  dis- 
crimination to  prohibit,  except  under  license,  non-residents 
from    running   lines   of   coaches   into  or  within  the  city, 

(1)  Yick  Woo  V.  Hopkins,  118  U.  S.  356. 

(2)  Regina  v.  Pipe,  1  Ontario,  43. 

(3)  Louisville  v.  Roupe,  6  B.  Mon.  591. 

(4)  Ilayden  v.  Noyes,  5  Conn.  391. 


§  138.]  RULES    OF    VALIDITY.  107 

without  imposing  an  equal  burden  on  the  same  occupation 
when  exercised  by-  residents.'  So,  non-resident  peddlers 
and  sales-agents  can  not  be  restricted  to  any  further 
extent  than  residents,  neither  can  additional  burdens  be 
imposed  on  the  sale  of  goods  that  are  not  of  local  manu- 
facture.^ And  no  discrimination  in  wharfage  fees  can  be 
lawfully  made  against  citizens  of  other  states  than  the  one 
in  which  the  municipality  is  located.*  An  ordinance  is 
void  for  the  same  reason  that  prohibits  swine  belonging  to 
non-residents  from  running  at  large  in  the  town  when  no 
such  restriction  is  made  upon  residents.* 

§  138.  Once  void,  always  void. — If  the  corporate 
power  is  exceeded  at  the  date  of  the  enactment  of  an  ordi- 
nance, no  subsequent  grant  of  additional  power  could 
validate  the  prior  ordinance.  An  ordinance  which  is  void 
at  its  inception  is  always  void,  and  neither  the  council  nor 
the  legislature  can  lend  it  validity  by  subsequent  affirm- 
ance or  legislation.^  And  even  when  subsequent  legislation 
is  held  to  validate  a  void  ordinance,  the  ordinance  does 
not  gain  any  retrospective  effect.^  An  ordinance  that  has 
been  declared  void  for  inconsistency  with  the  provisions 
of  a  state  law  does  not  acquire  validity  through  the  repeal 
of  the  law  to  which  it  is  obnoxious.^ 

(1)  Commonwealth  v.  Stodder,  2  Cush.  562. 

(2)  Marshalltown  v.  Blum,  58  la.  184;  Welton  v.  Missouri,  91  U.  S. 
275;  Pacific  Junction  v.  Dyer,  64  la.  38;  St.  Rochs  Sud  v.  Dion,  1  Que- 
bec, 242;  Graffty  v.  llushville,  107  Ind.  502;  Fecheimer  v.  Louisville 
(Ky.  1886),  35  Alb.  L.  J.  155;  Nashville  v.  Althrop,  5  Cold.  554;  Dan- 
iel V.  Richmond,  78  Ky.  542;  St.  Charles  v.  Nolle,  51  Mo.  122;  Robbins 
V.  Shelby  County  (U.  S.  Sup.  Ct.  1887),  7  Sup.  Ct.  Rep.  592;  Corson  v. 
Maryland,  7  Sup.  Ct.  Rep.  655. 

(3)  Guy  V.  Baltimore,  100  U.  S.  434;  Broeck  v.  Welch,  18  Blatch.  54; 
s.  c,  2  Fed.  Rep.  364. 

(4)  Roberts  v.  Ogle,  30  111.  459. 

(5)  Hydesv.  Joyes,  4  Bush,  464;  Mt.  Pleasant  v.  Vansice,  43  Mich. 
361.     Contra,  Truchelot  v.  City  Council,  Nott  &  McC.  227. 

(6)  Lake  View  v.  Letz,  44  111.  81. 

(7)  Mt.  Pleasant  v.  Vansice,  43  Mich.  361. 


108  MUNICIPAL    POLICE    ORDINANCES.  [§  139. 

§  139.  Partial  invalidity. — Ordinances  passed  in  pur- 
suance of  an  express  power  are  often-  so  worded  as  to  in- 
clude some  provisions  which  are  not  authorized  by  the 
power.  The  unauthorized  provisions  do  not  invalidate 
the  whole  ordinance  if  they  can  be  separated  from  the  rest 
of  the  ordinance  without  so  mutilating  it  as  to  render  it 
inoperative  ;  but  whenever  the  void  portion  is  an  essential 
element  of  the  whole,  when  the  provisions  are  mutually 
dependent,  then  the  whole  ordinance  falls.^ 

"  When  an  ordinance  is  entire,  each  part  being  essential 
and  connected  with  the  rest,  the  invalidity  of  one  part 
renders  the  whole  invalid,  but  when  it  consists  of  several 
distinct  and  independent  parts,  as  when  it  prohibits  dis- 
junctively two  or  more  acts,  the  invalidity  of  one  part  does 
not  affect  the  validity  of  the  others."^ 

The  fact  that  an  ordinance  covers  matters  which  the 
city  has  no  power  to  control,  is  no  reason  why  it  should 
not  be  enforced  as  to  those  which  it  may  control.^  So, 
when  a  double  penalty  is  imposed  upon  some  offense,  one 
of  them  being  unauthorized  by  the  charter  does  not  pre- 
vent the  enforcement  of  the  other.*  But,  if  the  penalty  is 
void,  the  whole  ordinance  is  void.'  When  an  ordinance 
contains  several  sections,  each  defining  a  different  offense, 
the  sections  are  not  m'utually  dependent,  and  one  may  be 
void  without  affecting  the  validity  of  the  others.^  If  the 
prohibition  of  the  ordinance  is  against  enumerated  offenses, 
or  if  its  subject-matter  is  expressed  by  an  enumeration,  in 

(1)  State  V.  Hoboken,  38  N.  J.  110;  Trowbridge  v.  Newark,  46  N.  J. 
140;  Bakery.  Normal,  81  111.  lOS:  Harbaugh  <.-.  Monmouth,  74  111.  367; 
Quincy  v.  Bull,  106  111.  337;  Cantril  v.  Sainer,  59  la.  26;  Eldora  v. 
Burlingame,  62  la.  32 ;  Commonwealth  v.  Dow,  10  Mete.  382;  Warren 
V.  Mayor,  2  Gray,  84;  Amesbury  v.  Insurance  Co.,  6  Gray,  596;  St.  Louis 
V.  Railway  Co.,  14  Mo.  App.  221 ;  State  v.  Clarke,  54  Mo.  17;  Rogers  v. 
Jones,  1  Wend.  237;  Piqua  v.  Zimmerlin,  35  0.  S.  507;  Rau  v.  Little 
Rock,  34  Ark.  303;  St.  Louis  v.  Railway  Co.,  89  Mo.  44. 

(2)  Penna.  Railroad  Co.  v.  Jersey  City,  47  N.  J.  286. 

(3)  Kettering  v.  Jacksonville,  50  111.  39. 

(4)  Wilcox  V.  Hemming,  58  Wis.  144. 

(5)  State  V.  Cainan,  94  X.  C.  883. 

(6)  Rogers  v.  Jones,  1  Wend.  260. 


§  139.]    ,  RULES    OF   VALIDITY.  109 

which  some  things  are  contained  over  which  the  corpora- 
tion has  no  power,  the  enumeration  is  separable.^  An  or- 
dinance regulating  the  speed  of  railroad  trains  over  the 
public  streets  is  not  wholly  void  because  its  provisions  are 
unreasonable  when  applied  to  one  or  two  suburban  streets.^ 
Separability  of  the  void  from  the  valid  parts  of  the  or- 
dinance is  the  only  test,  and  a  fair  doubt  should  be  so  re- 
solved as  to  effectuate  the  ordinance. 

(1)  Shelton  v.  Mobile,  30  Ala.  540. 

(2)  Kailroad  Co.  v.  Jersey  City,  47  N.  J.  286. 


110  MUNICIPAL    POLICE    ORDINANCES.  [§  140. 


CHAPTER  VII. 

REMEDIES. 

§  140.  Introduction. 

§  141.  Territorial  limits. 

§  142.  Extraterritorial  eflFect. 

§  143.  Ordinances  affect  what  persons. 

§  144.  When  parts  of  the  corporate  limits  exempt 

§  145.  Jusisdiction  over  railroad  property. 

§  146.  Jurisdiction  over  streets. 

§  147.  Penalties. 

§  148.  The  kind  of  penalty  that  may  be  adopted. 

§  149.  Penalties  are  not  licenses. 

§  150.  Fines. 

§  151.  Amount  of  the  fine. 

§  152.  Cumulative  fines. 

§  153.  Repetition  of  an  offense  more  heavily  punished- 

§  154.  Costs  of  the  prosecution. 

§  155.  Imprisonment  in  default  of  payment. 

§  156.  The  power  strictly  construed. 

g  157.  Such  imprisonment  does  not  satisfy  the  fine. 

§  158.  Imprisonment  as  a  penalty. 

g  159.  Forfeiture. 

§  160.  Illustrations. 

§  161.  Strays. 

§  162.  Notice  to  the  owner. 

§  163.  Judicial  determination. 

§  164.  Forfeiture  of  real  estate. 

§  140.  Introduction. — Most  municipal  ordinances  would 
be  entirely  inefiective  if  there  were  no  way  of  compelling 
obedience  to  their  provisions.  Those  which  are  passed  in 
the  exercise  of  the  powers  of  local  police  regulation  must, 
like  the  police  laws  of  the  state,  be  capable  of  proper  en- 
forcement. Ordinances  of  a  quasi-ministerial  nature,  such 
as  those  providing  for  the  improvement  of  the  streets,  do  not 
need  to  contain  such  positive  provisions  for  their  enforce- 
ment, because  the  execution  of  the  contracts  entered  into 
by  their  authority  is   a  matter  independent   of  the   local 


o    241.1  REMEDIES.  1^^ 

police  and  the  taxes  levied  to  bear  the  expense  are  usually 
collected  and  enforced  by  the  ministerial  agents  of  the 
state  or  city  in  some  manner  prescribed  by  general  law. 
Their  burdens  are  imposed  upon  the  property  affected, 
whereas  police  ordinances  primarily  affect  rights  of  the 
person,  and  provision  must  be  made  to  enforce  them 
against  the  person,  else  they  are  of  no  avail.  The  gist  of 
the  ordinance  is  that  part  which  prescribes  the  penalty, 
and  the  necessity  of  keeping  within  the  limits  of  authority 
as  to  the  penalties  imposed,  and  as  to  the  persons  sub- 
jected to  their  enforcement,  is  far  greater  than  that  of 
observing  the  strict  limits  of  the  degree  of  lawful  regula- 
tion, or  of  the  extent  of  the  subject-matter  incorporated 
into' the  ordinance.  Penalties  are  to  be  construed  strictly, 
without  exception,  against  the  body  in  whose  favor  they 
are  imposed.  The  remedy  to  be  adopted  in  enforcing 
ordinances  must  be  cautiously  selected,^  and  strictly  con- 
fined to  the  limits  of  the  existing  authority. 

§  141.  Territorial  limits.--As  has  been  stated,  one  of 
the  prime  essentials  of  police  ordinances  is  that  they  shall 
aim  at  corporate  purposes  alone.  Unless  the  special  cir- 
cumstances surrounding  the  necessity  for  a  certain  regula- 
tion require  it  to  be  of  only  limited  territorial  apphcation, 
police  ordinances  take  effect  over  the  whole  territory 
included  within  the  corporate  limits,  both  at  the  time  of 
their  passage  and  at  all  times  thereafter.  If  the  limits  of 
the  corporation  should  subsequently  be  extended,  those 
within  the  added  territory  would,  ipse  facto,  come  within 
the  operation  of  all  the  ordinances  then  in  force.^  Any 
other  rule  would  not  only  produce  innumerable  complica- 
tions, but  it  would  necessitate  the  re-enactment  of  the 
whole  body  of  local  laws,  whenever  any  material  addition 
is  made  to  the  territorial  extent  of  the  corporation. 

(3rdinances  that  do  not  fall  within  the  operation  of  the 
rule  arc  such  as  limit  certain  occupations  or  acts  to  pre^ 
scribed  portions  of  the  municipal  territory;  and,  to  a  very 
limited  extent,  ordinances  general  in  their  form,  but  which 

(1)  Toledo  V.  Edens,  59  la.  352. 


112<  MUNICIPAL    POLICE    ORDINANCES.  [§    142. 

would  work  decided  inequalities  of  burdens  if  en- 
forced over  the  entire  limits.  For  example  of  the  latter 
class,  it  is  lawful  to  limit  the  speed  of  railway  trains  within 
a  city,  but  if  the  city  covers  considerable  tracts  of  agricul- 
tural, or  sparsely  settled  land,  it  would  be  useless  and 
oppressive  to  demand  a  moderation  of  speed  in  such  por- 
tions of  the  city  equal  to  that  exacted  in  the  heart  of  the 
city.^  It  would  be  equally  oppressive  to  impose  the  same 
degree  of  restriction  on  occupations  carried  on  in  such  vir- 
tually rural  districts  as  is  necessary  in  the  thickl}'  peopled 
parts  of  the  city.^  But  the  circumstances  in  each  case 
must  be  such  as  make  the  inequality  of  burden  very  plain 
in  order  to  warrant  a  departure  from  the  general  rule. 

§142.  Extraterritorial  effect. — The  same  reasons  that 
necessitate  any  kind  of  local  regulation  apply  to  demon- 
strate that  many  acts  may  be  injurious  to  the  inhabitant* 
of  a  town  or  city  when  performed  without  its  territorial 
limits.  And  the  inhabitants  are  often  greatly  in  need  of 
power  to  provide  for  adequate  sewerage  or  water  supply  hy 
using  and  regulating  the  use  of  property  beyond  the  limits. 
It  would  seem  eminently  proper  that  some  means  should 
be  provided  by  which  the  corporation  in  such  cases  may 
exercise  some  degree  of  control  over  the  immediately  ad- 
joining territory.  Still,  the  spirit  and  the  letter  of  our 
laws  are  plain  that  no  power  of  this  kind  may  be  exercised 
unless  it  is  expressly  granted  by  the  state  legislature,  and 
that  the  authority  must  be  clear  and  undoubted.^  Munici- 
pal corporations  may  exercise  power  of  police  control  over 
adjoining  navigable  waters,  where  such  control  comes  in 
conflict  with  no  provision  of  the  maritime  law  of  the  land. 
But  such  jurisdiction  is  limited  to  police  purposes,  and 
must  not  interfere  with  or  create  property  rights.     Thus 

(])  Meyers  v.  Railroad  Co.,  57  la.  555;  s.  c,  42  Am.  Rep.  50. 
,(2)  Salt  Lake  City  v.  Wagner,  2  Utah,  400. 

(3)  Strauss  v.  Pontiac,  40  111.  301;  Chicago  Packing  Co.  v.  Chicago, 
88  111.  221 ;  Coldwater  r.  Tucker,  36  Mich.  474;  s.  c,  24  Am.  Rep.  601. 
The  erection  of  a  cemetery  just  outside  the  city  limits  can  not  be  pre- 
vent'^d  by  a  municipality.     Begein  v.  Anderson,  28  Ind.  79. 


§  143.]  REMEDIES.  113 

fishing  in  adjoining  waters  could  not  be  prohibited.^  If  a 
municipal  corporation  is  bounded  by  navigable  water,  on 
the  other  side  of  which  another  municipality  is  located, 
each  would  be  allowed  to  exercise  police  control  to  the 
center  of  the  stream.  In  one  instance,  that  of  ITew  York 
city,  the  state  legislature,  in  view  of  the  importance  of  the 
interests  exposed,  has  extended  the  jurisdiction  of  the  city 
over  the  navigable  rivers  surrounding  it  up  to  the  opposite 
shore  line  of  those  rivers,  to  the  exclusion  of  the  power  of 
the  adjoining  cities.^ 

§  143.  Ordinances  affect  what  persons. — In  order  that 
ordinances  shall  serve  the  purposes  of  their  enactment,  it 
is  evident  that  they  must  bind  the  actions  of  every  one 
who  is  at  any  time  found  within  the  corporate  limits,  not 
only  regular  citizens,  but  non-residents  and  even  transient 
visitors.  This  proposition  is  as  applicable  to  municipal 
regulations  as  to  those  of  a  state  or  nation.^  An  early  de- 
cision in  IsTew  York  deviates  from  the  strict  rule,  and  holds 
that  a  stranger  could  not  be  prosecuted  in  a  municipal 
court  for  trespassing  upon  the  commons  in  violation  of  the 
provision  of  an  ordinance  passed  under  authority  to  im- 
prove the  public  commons  and  to  prescribe  regulations  to 
govern  their  use.^ 

Whoever  comes  in  person,  or  allows  his  property  to  be 
in  the  corporate  limits,  tacitly  consents  to  submit  to  all 
local  laws,  and  his  property  rights  are  as  much  subject  to 
their  regulations  as  he  himself.  If  a  non-resident's  busi- 
ness interests  are  located  within  the  corporate  limits  they 

(1)  Palmer  v.  Hicks,  6  Johns.  133;  Ogdensburg  v.  Lyon,  7  Lans.  215. 

(2)  Udall  V.  Brooklyn,  19  Johns.  175;  Stryker  v.  New  York,  19 
Johns.  179. 

(3)  Plymouth  v.  Pettijohn,  4  Dev.  Law,  591 ;  Wilmington  v.  Koby,  8 
Ired.  Law,  250;  Gilmore  v.  Holt,  4  Pick.  258;  Vandine,  Petitioner,  6 
Pick.  187;  Ex  parte  McNair,  13  Neb.  195;  Gosselink  v.  Campbell,  4 
la.  296 ;  Pierce  v.  Bartrum,  Cowp.  269 ;  Eegina  v.  Osier,  32  U.  C.  Q. 
B.  324;  Cooley  Const.  Lim,  *p.  199;  Harvey  v.  Sloan,  Smith  (Ind.), 
136. 

(4)  Foster  v.  Rhoads,  19  Johns.  191. 


114  MUNICIPAL   POLICE   ORDINANCES.  [§  143. 

enjoy  the  fall  benefit  and  protection  of  the  local  laws,  and 
ought  not  to  be  exempt  from  their  burdens.  If  animals 
belonging  to  a  non-resident  stray  into  a  corporation  the 
local  authorities  may  execute  the  ordinance  against  strays 
against  them  to  the  same  extent  as  though  they  were  the 
property  of  a  citizen.  The  accident  of  ownership  can  not 
alter  the  degree  of  the  oflfense.^  The  fact  that  a  business 
man  lives  outside  of  the  city  does  not  excuse  him  from  the 
pa3'ment  of  a  tax  imposed  by  the  city  upon  all  businesses 
of  the  same  nature  as  his.^  If  an  ordinance  imposes  a 
license  tax  on  all  vehicles  used  for  hire  on  the  public 
streets,  the  tax  must  be  paid  for  each  vehicle  of  the  kind, 
by  whomsoever  owned.^  So  a  tax  imposed  on  the  owner 
of  all  vehicles  kept  or  used  for  free  delivery  within  the 
limits  of  a  city  can  be  collected  from  the  proprietors  of 
iron  works  whose  drays  are  sent  into  the  city  to  deliver 
goods.* 

In  these  cases,  as  in  all  others,  regard  must  be  had  for 
the  purpose  and  reason  of  the  law.  Its  spirit  as  well  as 
letter  must  be  observed.  Non-residents  are  subject  to  the 
local  laws,  because  their  interests  and  rights  are  protected, 
and  they  should  therefore  help  bear  their  burdens,  and  also 
because  their  interests  or  occupations  are  injurious  to  some 
corporate  right.  If  the  reason  for  holding  a  non-resident 
fails,  he  ought  to  go  free.  Thus,  if  a  tax  is  imposed  on 
every  vehicle  using  the  paved  streets,  intended  reference  is 
had  to  such  as  use  them  habitually^  and  the  ordinance  would 
not  operate  to  bind  a  non-resident  who  uses  the  paved 
streets  incidentally  in  passing  through  the  corporation.' 
Neither  would  such  a  provision  apply  to  one  who  lives  at 
a  distance,  but  who  occasionally  brings  a  load  into  the  city 

(1)  Kennedy  v.  Sowden,  1  McMuU.  323;  Knoxville  v.  King,  7  B.  J. 
Lea,  441 ;  Spitler  v.  Young,  63  Mo.  42;  Centerville  v.  Lanham,  67,Ga. 
753. 

(2)  Wilkinson  v.  Charleston,  2  Spears,  623;  Edenton  v.  Capeheart,  71 
N.  C.  156. 

(3)  Council  V.  Pepper,  1  Rich.  L.  364. 

(4)  Memphis  v.  Battaile,  8  Heisk.  524. 

(5)  Bennett  v.  Birmingham,  31  Pa.  St.  15. 


§  114.]  REMEDIES.  115 

and  takes  another  back.  Such  use  is  not  habitual.^  Under 
power  to  regulate  all  hucksters  living  in  the  city  or  within 
one  mile  thereof,  the  ordinance  must  be  drawn  so  as  not  ta 
be  applicable  to  any  one  living  more  than  a  mile  away.^ 
Likewise  an  ordinance  providing  for  the  payment  of  a  tax 
on  "all  hay  bought  or  brought  within  the  corporation" 
applies  only  to  persons  who  sell  hay  in  the  city  for  use  in 
the  city.  It  would  not  apply  to  a  non-resident  who  buys 
hay  in  the  city  for  use  without  the  city.^ 

A  power  to  restrict  "residents"  in  some  manner  can  not 
be  extended  to  warrant  the  same  regulation  of  non-resi- 
dents.^ The  fact  that  the  word  is  used  in  the  power  im- 
plies the  exclusion  of  all  other  persons,  and  whenever  a 
serious  doubt  exists,  it  must  be  resolved  in  favor  of  a  non- 
resident who  has  been  proceeded  against. 

§  144.  When  parts  of  the  corporate  limits  exempt. — 
The  proposition  that  all  persons  within  the  limits  of  a  cor- 
poration are  subject  to  the  corporate  ordinances  must  be 
accepted  with  some  limitation  as  to  the  place  where  the 
ofi'ense  is  committed.  Every  act  that  is  prohibited  as  a 
police  regulation  is  considered  injurious  or  threatening  in- 
jury to  the  public  welfare,  and  distinction  must  be  drawn 
between  various  unlawful  acts  according  to  the  degree  of 
their  capability  of  doing  harm.  In  a  municipality  the 
only  places  that  are  really  public  are  the  streets,  squares, 
commons,  and  public  buildings  to  which  all  have  access, 
and  there  are  classes  of  acts  that  are  not  injurious  to  the 
public  in  any  sense  unless  committed  in  a  public  place. 
A  person  who  is  seen  publicly  in  a  state  of  intoxication 
may  cause  a  breach  of  the  peace,  and  is  at  any  rate  a 
spectacle  that  works  harm  upon  the  standard  of  public 
morals  and  decency,  but  the  public  is  not  affected  if  a  per- 
son gets  intoxicated  in  the  seclusion   of  his  own  house. 

(1)  St.  Charles  v.  iSTolle,  51  Mo.  122.  Likewise  as  to  carriages,  Adgar 
V.  Mayor,  2  Spear,  719. 

(2)  Snell  V.  Belleville,  30  U.  C.  Q.  B.  81. 

(3)  Gass  V.  Greeneville,  4  Sneed,  62. 

(4)  Garden  City  v.  Abbott,  34  Kan.  283. 


116  MUNICIPAL    POLICE    ORDINANCES.  [§  144. 

The  public  has  no  right  of  access  to  his  house.  Likewise^ 
it  would  be  of  uo  import  to  the  public  that  a  man  supports 
a  billiard  room  for  the  use  of  his  family  and  invited  guests. 
So  long  as  uot  every  one  may  have  access  to  and  partake 
in  the  thing  otherwise  unlawful,  no  offense  can  be  com- 
mitted. If  the  ordinances  directed  against  such  offenses 
do  not  expressly  restrict  their  own  operation'  to  public 
places,  the  courts  will,  when  called  upon,  supply  the  de- 
ficiency by  construction. 

Purely  private  rights  can  not  be  regulated  by  ordinance 
except  when  they  still  threaten  the  public  good.  Many 
occupations  that  are  conducted  wholly  on  one's  own 
premises  may  have  results  that  are  evil.  Slaughtering, 
manufacturing  chemicals,  tanning,  operating  noisy  or  pon- 
derous machinery,  are  things  which  thus  in  fact  harm  or 
disturb  the  health  and  convenience  of  the  public.  The 
storage  of  explosives,  or  of  combustibles,  or  the  use  of  in- 
flammatory material  in  the  construction  of  buildings,  are 
things  that  may  easily  do  injury,  and  by  reason  of  their 
threatening  character  may  be  prohibited.  In  such  casea 
police  regulation  may  invade  and  control  private  premises 
and  the  mode  of  their  use,  regardless  of  whether  the  pub- 
lic has  access. 

But  under  power  to  prevent  and  suppress  opium  smok- 
ing, only  those  can  be  punished  who  smoke  in  a  place  kept 
for  public  use  for  that  purpose.^  And  under  an  ordinance 
providing  that  "  all  hogs  shall  be  kept  up,"  the  running 
of  hogs  in  public  places  may  be  prevented,  but  no  addi- 
tional remedy  is  thereby  created  against  a  person  who  al- 
lows his  hogs  to  escape  into  an  adjoining  lot.^  So,  power 
to  regulate  wharves  does  not  extend  to  regulation  of  wharves 
that  are  owned  and  conducted  by  private  enterprises.  The 
reason  of  the  power  is  that  the  public  may  be  compensated 
for  the  outlay  in  providing  public  wharves,  and  that  the 
wharves  so  provided  may  be  protected  from  improper  use. 
The  reason  no  longer  exists  when  the  ownership  and  con- 

(1)  Ex  parte  Ah  Litt.  (Oregon,  1886)» 

(2)  Shepherd  v.  Hees,  12  Johns.  433. 


^ 


145.]  KEMEDIES.  *        117 


trol  is  private.^  The  lowering  of  cotton  bales  on  to  an 
open  private  space  where  they  are  exhibited  for  sale,  and 
which  is  open  to  the  public,  is  dangerous  enough  to  need 
regulation.^ 

§  145.  Jurisdiction  over  railroad  property. — Railroads 
are  often  called  semi-public  institutions,  and  their  prop- 
erty is  likewise  semi-public.  Their  tracks,  grounds,  and 
depots,  when  located  in  a  thickly  settled  community,  are 
unavoidably  used  more  or  less  by  the  general  public,  and 
their  conduct  is  accompanied  by  danger  even  on  the  com- 
pany's private  grounds.  It  is,  therefore,  eminently  proper 
that  municipalities  should  exercise  some  degree  of  con- 
trol over  the  details  of  their  management.  .  This  right  is 
evident  in  regard  to  street  crossings  and  other  places  where 
the  right  to  use  the  space  is  open  to  the  railroad  and  the 
public  alike.  It  has  been  held  that  the  speed  of  trains  can 
only  be  regulated  over  the  streets,  squares,  and  public 
grounds,^  but  the  generally  accepted  view  is  that  such  regu- 
lation may  be  exercised  over  the  whole  line  of  the  right  of 
way  through  the  corporation,*  and  even  over  the  switch 
yards  of  the  company.'  Where  an  ordinance  prohibited 
the  running  of  any  car  or  engine  at  a  higher  rate  of  speed 
than  ten  miles  an  hour  within  the  city  limits,  it  was  held 
that  it  was  not  intended  tc^  apply  to  engines  used  in  the 
yards  and  private  premises  of  the  railroad  company,  but 
the  court  intimated  that  an  ordinance  might  have  been 
lawfully  passed  that  would  apply  to  even  the  private 
yards.^ 

Under  power  to  regulate  hacks,  an  ordinance  may  be 
made  to  apply  to  their  conduct  on  the  depot  grounds  of  a 

(1)  Vanderwater  V.  New  York,  2  Sandf.  258;  Commissioners  v.  Nell, 
Z  Yeates,  54;  New  Orleans  v.  Wilmot,  31  La.  Ann.  65;  St.  Martinsville 
V.  Mary  Lewis,  32  La.  Ann.  1293. 

(2)  Charleston  v.  Elford,  1  McMuU.  234. 

(3)  State  V.  Jersey  City,  29  N.  J.  L.  170. 

(4)  Pennsylvania  Co.  v.  James,  32  P.  F.  Smith,  194;  Whitson  v. 
Franklin,  34  Ind.  392. 

(5)  Crowley  v.  Railroad  Co.,  65  Iowa,  658. 

(6)  Green  v.  Canal  Co.,  38  Hun,  51. 


118  MUNICIPAL   POLICE    ORDINANCES.  [§  147. 

railroad  as  well  as  upon  the  public  streets,  and  that  they 
may  be  compelled  to  occupy  certain  stands  under  the  di- 
rection of  a  public  officer.^  But  it  has  been  held  in  New 
York  that  under  power  to  license  and  regulate  vehicles 
used  for  public  hire,  an  ordinance  prescribing  certain  stands 
for  hacks  would  not  prevent  their  occupying  other  stands 
on  private  railroad  premises.'^ 

§  146.  Jurisdiction  over  streets. — Police  regulation  is 
always  properly  exercised  over  the  streets  of  a  corporation, 
without  regard  to  the  title  to  the  streets.  Even  private 
streets  may  be  generally  used  by  the  public.  Power  over 
streets,  the  fee  in  which  belongs  to  the  adjoining  owners, 
is  limited  to  police  regulation  and  to  such  measures  as  are 
necessary  to  insure  the  serviceability  of  the  roadway.  The 
city  could  not  alter  the  physical  characteristics  of  a  private 
street  publicly  used,  nor  could  it  authorize  a  railroad  com- 
pany to  run  over  a  street  to  which  the  fee  remains  in  the 
land-owners,  unless  express  authority  is  granted  by  the 
state.^  But  the  fact  that  a  turnpike  company  owns  the  fee 
does  not  prevent  the  exercise  of  any  grade  of  police  regu- 
lation.* 

§  147.  Penalties. — A  penalty  is  a  punishment  for  doing 
a  prohibited  act  or  omitting  some  imperative  duty.  It 
does  not  include  imprisonment,  when  used  with  reference 
to  municipal  ordinances.*  Ordinances  would  be  inopera- 
tive if  no  power  was  vested  in  the  municipality  to  enforce 
obedience  to  them.  Provision  is  usually  made  by  statute 
or  charter  for  the  means  that  may  be  adopted  to  enforce 
ordinances;  bat  if  it  is  not  expressly  made,  the  municipality 
is  not  thereby  barred  from  its  remedy.     Although  penal- 

(1)  Walsh  V.  Railroad  Co.,  27  Minn.  367;  St.  Paul  v.  Smith,  27  MinA 
364. 

(2)  Buffalo  V.  Mulchady,  1  Sheldon,  431. 

(3)  Quinn  v.  Paterson,  28  N,  J.  35 ;  Perry  v.  Railroad  Co.,  55  A1& 
425. 

(4)  State  V.  New  Brunswick,  30  N.  J.  395. 

(5)  Lancaster  v.  Richardson,  4  Lans.  136. 


119 

g  l^-T  -I  REMEDIES. 

•«.i.ffnllv  looked  upon  with  disfavor,  no  grant  of 

fntent  that  the  exereiBe  of  -the  power  shou  d  be  made 
effe  t  ve  by  the  imposition  of  adequate  peaalt.es.  Power 
to  ordaiu  implies,  of  necessity,  power  to  provide  and  en- 
f:r=e  reasonable  ;enalties..  The  penalties  rrnposed  unde 
Imp  ied  power  must  be  reasonable,  that  >Mhey  mus'  n°t 
be  too  severe  to  accomplish  *eir  purpose-that  of  insur 
ing  obedience  to  the  ordinances.  Regard  mu  t  be  had  f„ 
the  policy  of  the  state  as  evidenced  in  grants  to  o*er  cor 
positions',  or  to  the  same  corporation  over  other  subjects  of 

'°  pLver  ^'establish,  erect,  and  keep  bridges  in  repair  im- 
Blies  power  to  provide  by  ordinance  for  the  punishment  of 
?erZwbo  willfully  injure  the  bridges  that  ^^^J<'^^^^^^- 
der  the  erant.^    Under  power  "to  open,  widen,  establish 
Ircve  and  keep  in  repair  the  streets,  avenues,  etc.,"  and 
7pas   ordLiancef  to  effLtuate  that  power,  &-  may    aw- 
fully  be  imposed  for  obstructing  ti>e  public  streets     Power 
Irp^-event  nuisances  necessitates  the  imposition  of  deflm 
Tienalties  for  tlieir  erection  or  maintenance,      feo,  a  power 
L  prevent,  as  the  council  "  may  judge  proper,"  the  erection 
of  wooden  buildings  authorizes  an  ordinance  prescribing  a 
penalty  to  be  enforced  by  a  prosecution   in  the  municipal 
courts.^   Under  a  general  power  of  police  regulation,  a  city 
may  impose  pecuniary  penalties  for  injuries  to  the  public 
property.^     And  power  to  levy  a  license  tax  implies  power 
to   enforce   payment    by   appropriate  proceedings.      If  a 
municipality  has  power  to  suppress  bawdy  houses,  power 

(1)  Tipton  ..  Norman,  72  Mo.  380;  Eyerman  ..  Blaksley  78  Mo. 
14  \y  nooski  ..  Gokey.  49  Vt.  282;  Grover  ..  Hucknjs  26  M,ch^476; 
Moiile  ..  Yuille.  3  Ala.  137;  London  ..  Vanacre,  12  Mod^  ^^^^  ^^^^^J! 
.  Shawneetown,  77  111.  533;  Shreveport  ..  Roos,  35  La.  Ann.  lOlU, 
Hooksett  V.  Amoskeag  Co.,  44  N.  H.  105. 

(2)  Korah  v.  Ottawa,  32  111.  122. 

(3)  Railroad  Co.  v.  Chenoa,  43  111.  209. 

(4)  Railroad  Co.  v.  Louisville,  8  Bush,  415. 

(5)  Respublica  v.  Duquet,  2  Yeates,  493. 

(6)  Korah  v.  Ottawa,  32  111.  122. 

(7)  Amite  City  v.  Clements,  24  La.  Ann.  27. 


120  MUXICIPAL    POLICE    ORDINANCES.  [§  149. 

to  adopt  means  to  suppress  them  follows  by  implication.^ 
But  if  the  charter  enumerates  certain  powers  that  may  be 
enforced  by  'penal  prosecution,  such  enumeration  ex- 
cludes the  implication  of  right  to  impose  penalties  in  other 
cases.^ 

§  148.  The  kind  of  penalty  that  may  be  adopted.— 
Whenever  the  organic  law  of  the  corporation  defines  the 
mode  of  enforcement  of  ordinances,  the  definition  must  be 
strictly  adhered  to.'  Thus,  under  a  power  to  punish  by 
fine  or  imprisonment,  an  ordinance  is  void  which  imposes 
a  certain  fine  or  a  certain  imprisonment,  or  both}  When 
the  mode  of  enforcement  is  specified  in  the  act  containing 
the  grant  of  power,  or  otherwise,  all  other  modes  are  pre- 
cluded.* The  usual  means  are  to  be  resorted  to  if  no  others 
are  indicated  f  and  within  the  limits  of  those  usual  means 
the  council  may  exercise  its  discretion.^ 

§  149.  Penalties  are  not  Ucenses. — The  penalties  im- 
posed by  ordinances,  like  those  imposed  by  the  laws  of  the 
state,  can  in  nowise  be  construed  as  legalizing  the  acts 
subjected  to  punishment.  Penalties  are  not  licenses.  The 
acts  punished  are  thereby  made  unlawful.  Express  grant 
of  power,  for  example,  to  kill  dogs,  for  the  keeping  of 
which  no  license  has  been  obtained,  does  not  prevent  the 
imposition  of  a  penalty  on  the  owner  for  violation  of  the 
ordinance  in  refusing  or  omitting  to  procure  a  license. 
The  imposition  of  a  penalty  amounts  to  an  authoritative 
prohibition.^ 

(1)  Shreveport  v.  Roos,  35  La.  Ann.  1010. 

(2)  Grand  Rapids  v.  Hughes,  15  Mich.  54. 

(3)  Barter  v.  Commonwealth,  3  Pen.  &  W.  253 ;  Norton  v.  Kearon,  6 
Ir.  R.  C.  L.  126. 

(4)  Leland  v.  Commissioners,  42  X.  J.  375. 

(5)  Hartv.  Albany,  7  Wend.  571;  Moberly  v.  Wright,  19  Mo.  App. 
269. 

(6)  Grover  v.  Huckins,  26  Mich.  478. 

(7)  Mason  v.  Shawneetown,  77  111.  533 ,  State  v.  Cantieny,  34  Minn. 
1.     (Costs). 

(8)  Pedrick  V.  Bailey,  12  Gray,  161;  Johnson  v.  Simonton,  43  CaL 
242;  Faribault  V.  Wilson,  34  Minn.  254. 


§  151.]  REMEDIES.  121 

§  150.  Fines. — Fines  are  not  debts  in  the  sense  of  a  con- 
stitutional provision  which  prohibits  imprisonment  for 
debt.^  They  are  strictly  penalties,  and  are  in  the  nature 
of  liquidated  damages,  established  as  such  in  lieu  of  the 
damages  which  a  court  of  law  would  be  authorized  to 
assess  for  the  injury  done  to  the  public  by  the  offense 
punished.^ 

At  common  law  fines  constituted  the  only  lawful  mode 
of  punishing  breaches  of  ordinances.^  And  unless  express 
power  is  given  to  punish  in  some  other  mode,  as  by 
imprisonment,  the  rule  still  obtains.^  But  it  has  been  held 
that  authority  to  impose  "the  ordinary  penalties  "  does  not 
restrict  a  city  to  the  imposition  of  fines  alone  in  cases 
where  a  license  is  exacted.  Offenses  may  be  punished  by 
revocation  of  the  license.^ 

§  151.  Amount  of  the  fine. — Fines,  as  penalties,  must 
be  reasonable  in  amount;  but  when  the  limit  is  not  pre- 
scribed, the  amount  fixed  by  the  council  in  the  exercise  of 
its  discretion  is  presumptively  reasonable.  If  a  limit  is 
prescribed  by  statute,  it  must  be  strictly  observed,  and  no 
penalty  for  a  single  offense  may  exceed  the  maximum.  If 
fifty  dollars  is  the  prescribed  maximum  and  an  ordinance 
authorizes  the  imposition  of  any  amount  between  twenty 
and  one  hundred  dollars,  any  fine  levied  under  that  ordi- 
nance will  be  enforceable  if  not  greater  than  fifty  dollars. 
It  would  seem  that  the  mere  attempt  to  authorize  an  unlaw- 
ful fine  is  not  fatal  to  the  validity  of  the  ordinance  so  long 
as  the  minimum  fine  prescribed  would  be  lawful.® 

When  the  charter  of  a  city  gives  it  "the  same  power" 
to  impose  fines  that  had  previously  been  given  to  other 
towns,  and  as  to  other  towns  there  was  no  restriction  as  to 

(1)  Hardenbrook  v.  Ligonier,  95  Ind.  70;  Ex  parte  HoUwedell,  74 
Mo.  395;   Charleston  v.  Oliver,  16  S.  C.  47. 

(2)  First  Municipalty  v.  Cutting,  4  La.  Ann.  SSSj^^^^^rvV^^^V,^ 

(3)  Hall  V.  Nixon,  10  L.  E.  Q.  B.  159.  /^^      Of  rlf     ^^ 

(4)  Sedgwick  Stat.  Law,  p.  473.  \{  UNIVEBSITT 

(5)  Schwuchow  y.  Chicago,  68  111.444.  Xs^Cd/    '^'^        i4 

(6)  Greenfield  v.  Mook,  12  111.  App.  281.  N^i^'FORNlA^ 


122  MUNICIPAL    POLICE    ORDINANCES.  ■        [§  152. 

amount,  the  amount  of  the  fine  that  could  lawfully  be 
imposed  would  be  limited  only  to  the  jurisdiction  of  the 
tribunal  provided  for  the  trial  of  violations  of  the  ordi- 
nances.^ 

Fines  must  be  not  only  reasonable,  but  certain  in 
amount.  Neither  of  these  requirements  should,  however, 
be  .construed  to  mean  that  the  ordinance  should  name  the 
exact  amount.  If  the  ofi'ense  were  of  such  a  nature  that 
the  circumstances  of  its  commission  could  not  operate  to 
aggravate  it,  it  would  be  best  to  fix  upon  an  invariable 
amount  of  the  fine ;  but  most  offenses  do  vary  materially 
in  degree  according  to  the  accompanying  circumstances, 
and  the  best  ends  of  justice  are  subserved  by  recognizing 
this  fact  by  prescribing  certain  limits  within  which  the  court 
trying  the  offender  may  exercise  its  discretion.  A  provision 
that  a  certain  oj^ense  shall  be  punished  by  a  fine  net  over 
a  certain  amount,  but  fixing  no  minimum,  would  impose 
too  much  confidence  in  the  discretion  of  the  magistrate, 
who  might  adjudge  a  very  nominal  fine  against  an  offender 
and  thus  virtually  make  the  penalty  no  punishment  at  all. 
An  ordinance  is  both  reasonable  and  definite  which  fixes  a 
maximum  and  a  minimum  limit.-  lu  those  states  where 
actions  brought  to  enforce  penalties  under  municipal  ordi- 
nances are  considered  to  be  criminal  prosecutions,  it  is  held 
that  the  ordinance  should  fix  the  exact  amount  of  the 
fine.' 

§  152.  Cumulative  fines. — In  determining  the  validity 
of  a  judgment  imposing  a  fine,  care  must  be  had  to  dis- 
criminate between  offenses  that  are  several  and  distinct 
and  those  that  are  continuing.  Distinct  offenses  of  the 
same  nature  may,  under  some  codes  of  procedure,  be  pros- 

(1)  Hamilton  v.  Carthage.  24  111.  22;  Railroad  Co.  v.  Chenoa,  43  111. 
209;  Zylstra  v.  Charleston,  1  Bay  (S.  C).  382;   Dill.  M.  C,  §  438. 

(2)  McConville  v.  Jersey  City,  39  N.  J.  38;  State  v.  Crenshaw,  94  X. 
C.  871;  State  v.  Cainan,  94  N.  C.  883. 

(3)  Louisburg  v.  Harris,  7  Jones  (N.  C),  281 ;  State  v.  Zeigler,  32  N. 
J.  262;  Mooile  v.  Yuille,  3  Ala.  137  (overruled  in  Huntsville  v.  Phelps, 
27  Ala.  oo);   Peters  v.  London,  2  U.  C.  Q.  B.  543. 


§  153.]  REMEDIES.  123 

ecuted  in  one  and  the  same  action  ;  in  which  case  the  full 
limit  of  the  law  may  be  adjudged  against  the  offender  for 
each  offense,  regardless  of  the  fact  that  the  total  fine  thus 
imposed  far  exceeds  the  bounds  of  the  jurisdiction  of  the 
local  court.^  For  instance,  one  might  make  any  number 
of  unlawful  sales  of  intoxicating  liquors  on  the  same  day, 
and  each  sale  would  be  a  distinct  offense  punishable  sepa- 
rately. 

Other  acts  that  constitute  offenses  against  ordinances  are 
continuing  ;  that  is,  they  may  have  numerous  consecutive 
results,  each  of  which  may  be  considered  an  offense. 
Thus,  if  a  person  erect  a  nuisance,  not  only  the  primary 
erection  but  also  each  day's  continuance,  is  a  menace  to 
public  rights.  A  prosecution,  however,  would  needs  cover 
the  total  offense  prior  to  the  date  of  its  institution.  In 
such  cases,  the  limit  of  the  lawful  fine  for  maintaining  a 
nuisance  could  not  be  exceeded  for  the  same  nuisance,  but 
it  is  lawful  to  provide  an  initial  fine  for  creating  the  nui- 
sance and  an  additional  fine  for  each  day  of  its  continuance. 
The  fine,  as  thus  computed,  must  not  be  made  to  exceed  the 
limit  prescribed  for  that  kind  of  an  offense.  It  is  no 
ground  of  objection  to  such  an  ordinance  that  the  fine 
might,  under  its  provisions,  be  computed  to  exceed  the 
limit.^  An  ordinance  that  imposes  a  fine  of  five  dollars  for 
every  barrel  of  fiour  sold  without  having  been  inspected  by 
a  certain  ofilcer,  is  only  operative  up  to  the  $100  limit  fixed 
by  statute  as  the  amount  of  fine  that  the  municipality  may 
lawfully  impose.^  So,  under  power  to  regulate  the  sale  of 
gunpowder  and  to  punish  all  offenses  against  the  city  by 
fines  not  to  exceed  $250,  an  ordinance  that  imposes  a  finef 
of  $125,  on  each  hundred  pounds  kept  in  store,  could  only 
be  enforced  up  to  the  $250  limit.* 

§  153.  Repetition  of  an  offense  more  heavily  pun- 
ished.— It  is  proper  that  a  distinction  should  be  drawn  be- 

(1)  Columbia  v.  Harrison,  2  C.  C.  (S.  Car.)  215;  Heise  v.  Columbia,  6 
Rich.  404. 

(2)  Contra,  Commonwealth  v.  Wilkins,  121  Mass.  356. 

(3)  Chicago  v.  Quimby,  38  111.  274. 

(4)  New  York  v.  Ordrenaux,  12  Johns.  122. 


124  MUNICIPAL    POLICE    ORDINANCES.  [§  155. 

tween  the  first  and  a  subsequent  commission  of  an  offense. 
The  repeated  act  is  more  of  an  offense,  because  the  offend- 
er's attention  has  been  forcibly  attracted  to  the  provisions 
of  the  law,  and  the  disregard  thus  shown  for  the  rights  of 
the  public  is  less  pardonable.  Special  authority  is  often 
given  by  statute  to  distinguish  between  a  first  offense  and 
subsequent  offenses  by  imposing  a  heavier  fine  for  each  rep- 
etition of  the  unlawful  act;  but,  without  express  author- 
ity, such  discrimination  is  still  lawful,  so  long  as  the  higher 
penalty  is  within  the  limit  of  the  amount  that  the  munici- 
pality may  impose  for  breaches  of  its  ordinances.^ 

§  154.  Costs  of  the  prosecution. — In  computing  the 
amount  of  a  fine,  the  costs  of  the  proceeding  are  not  to  be 
considered  as  a  part  of  the  penalty,^  Municipal  corpora- 
tions are  generally  obliged  to  enforce  their  own  ordinances, 
and  the  expense  incurred  in  securing  the  punishment  of 
offenders  should  be  repaid  by  those  whose  digression  from 
the  path  of  duty  has  caused  the  expense.  Being  proceed-' 
ings  to  punish  the  commission  of  ofienses  against  the  com- 
munity, the  community  should  not  only  be  made  good 
for  its  outlay,  but  whatever  fines  are  imposed  should  be 
paid  into  the  municipal  treasury,  and  inure  to  the  benefit 
of  the  corporation.^ 

§  155.  Imprisonment  in  default  of  pasnnent. — Fines 
imposed  for  violations  of  ordinances  may  be  collected  by 
levying  upon  the  personal  property  of  the  offender  and 
selling  it,  as  upon  an  execution  in  a  civil  proceeding,  only 
when  the  authority  is  express.  If  any  remedy  exists 
against  his  real  estate,  it  can  only  be  enforced  in  a  separate 
action  brought  in  a  state  court.  In  Canada  the  sole  rem- 
edy is  against  personalty,*  and  in  the  United  States  neither 
realty  nor  personalty  can  be  subjected  to  the  payment  of  a 
fine  in  the  absence  of  special  authority." 

(1)  Staats  V.  Washington,  45  N.  J.  L.  318. 

(2)  State  V.  Herdt,  40  X.  J.  L.  264. 

(3)  People  V.  Sacramento.  0  Cal.  422. 

(4)  Queen  v.  Gilbert,  2  Pug.  &  Bur.  619;  Ex  parte  Trask,  1  Pug.  & 
Bur.  277. 

(5)  Howard  v.  Savannah,  T.  U.  P.  Ch.  173. 


§    156.]  REMEDIES.  125 

In  order,  therefore,  that  the  imposition  of  fines  for  of- 
fenses against  municipalities  may  be  made  effective 
against  impecunious  offenders,  it  is  usually  provided  by 
statute  or  charter  that  the  offender  may  be  imprisoned 
for  a  certain  length  of  time  in  case  default  is  made 
in  paying  the  fine  and  the  costs  of  prosecution.  Such 
imprisonment  is  not  looked  upon  as  a  punishment  for 
the  offense,  but  simply  as  a  necessary  means  of  en-, 
forcing  the  pecuniary  penalty.^  i^either  does  it  fall  within 
the  meaning  of  imprisonment  as  used  in  the  consti- 
tution, and  does  not  entitle  the  offender  to  the  protection 
of  any  of  the  rights  or  guaranties  which  are  accorded  ta 
persons  who  stand  accused  of  an  offense  punishable  by  im^ 
prisonment.^  By  paying  the  fine  imposed,  an  offender  can 
escape  this  kind  of  imprisonment.  Although  this  option 
to  pay  or  be  imprisoned  is  virtually  of  no  value  to  one- 
whose  poverty  prevents  him  from  exercising  it  to  escape 
confinement,  and  thus,  in  fact,  amounts  to  a  punishment,, 
it  is  just  that  class  of  offenders  who  escape  punishment  if 
no  such  procedure  were  lawful. 

The  charter  or  general  law  must,  however,  expressly 
authorize  this  mode  of  enforcing  fines.  Thus,  power  to 
punish  by  fines  or  imprisonment  does  not  include  power  to 
imprison  for  the  non-payment  of  a  fine.^ 

Neglect  to  take  out  a  license  required  by  ordinance  is  as 
much  a  violation  of  the  ordinance  as  other  offenses  more 
positive  in  their  nature,  and  the  payment  of  the  fine  pro- 
vided for  such  neglect  may  be  enforced  by  imprisonment 
whenever  a  failure  to  pay  a  fine  imposed  for  any  other  of- 
fense might  be  so  punished.* 

§  156.  The  power  strictly  construed. — In  adjudging 
the  alternative  of  payment  or  imprisonment  for  a  certain 
time  unless  the  fine  is  paid,  the  terms  of  the  power  to  so 

(1)  Sheffield  v.  O'Day,  7  111.  App.  339;  State  v.  Herdt,  40  N.  J.  264. 

(2)  State  V.  Herdt,  40  N.  J.  264;  Inwood  v.  State,  42  0.  S.  186. 

(3)  Brieswick  v.  Brunswick,  51  Ga.  639. 

(4)  Ex  parte  Council  of  Montgomery,  64  Ala.  453.  See  Plaquemine- 
V.  RuflF,  30  La.  Ann.  497. 


126  MUNICIPAL   POLICE    ORDINANCES.  [§   156. 

imprison  must  be  closely  followed,  and  the  imprisonment 
must  conform  exactly  to  the  wording  of  the  decree.  Where 
a  magistrate  is  empowered  to  commit  offenders,  in  default 
of  payment,  to  "  the  county  jail,"  and  "  for  such  time  as  the 
council  may  have  directed,"  a  commitment  to  any  other 
than  the  cou7ity  }ai\  would  be  unlawful,  and  no  commitment 
at  all  could  be  sustained  if  the  council  had  neglected  to 
make  the  contemplated  direction  as  to  the  duration  of 
the  imprisonment.  The  power  is  not  perfect  until  such 
direction  has  been  made.^  So,  where  the  statute  allows  six 
months'  imprisonment,  the  judgment  of  the  court  should 
in  terms  decree  imprisonment  for  six  months,  or  until  the 
fine  is  paid,  a  mere  general  judgment  of  imprisonment  be- 
ing unlawfnl  in  not  providing  for  the  possible  termination 
of  the  necessity  for  such  a  penalty.^  If  the  charter  author- 
izes such  imprisonment  for  twenty-one  days,  an  ordinance 
is  void  which  permits  or  authorizes  a  commitment  for  from 
one  to  thirty  days.'  If  the  state  law  directs  that  fines  shall 
be  collected  by  levying  execution  on  the  goods  and  chattels 
of  the  offender,  and  also  allows  imprisonment  for  failure  to 
pay  fines,  an  attempt  to  collect  a  pecuniary  penalty  by  ex- 
ecution mu^  be  made  before  the  right  to  imprison  can 
lawfully  be  exercised.* 

The  terms  of  the  judgment  rendered  must  be  closely  ob- 
served. Thus,  if  a  statute  make  it  lawful  to  imprison  at 
hard  labor  for  failure  to  pay  a  fine,  but  the  judgment  or 
sentence,  as  rendered,  simply  decrees  imprisonment  until  the 
fine  and  costs  are  paid,  to  subject  the  offender  to  imprison- 
ment at  hard  labor  would  render  the  authorities  who  ex- 
ecute the  sentence  liable  to  the  offender  in  an  action  for 
false  imprisonment.*  Costs  can  not  be  included  in  the 
amount  for  which  the  offender  is  imprisoned,  without  ex- 
press authority.* 

(1)  Merkee  v.  Rochester,  13  Hun.  137. 

(2)  Kanouse  v.  Lexington,  12  111.  App.  318. 

(3)  McLeod  v.  Kincasdine,  38.  U.  C.  Q.  B.  617. 

(4)  Queen  v.  Gilbert,  2  Pug.  ife  Bur.  619;  Ex  parte  Trask,  1  Pug.  & 
Bur.  277 ;  In  re  Greystock,  12  U.  C.  Q.  B.  458. 

(5)  Torbert  v.  Lynch,  67  Ind.  474;  Ex  parte  Moore,  62  Ala.  471. 

(6)  State  V.  Cantieny,  34  Minn.  1.     See  post,  §  203. 


§    158.]  REMEDIES.  127 

§  157.  Such  imprisonment  does  not  satisfy  the  judg- 
ment.— Consistently  with  the  theory  that  imprisonment  in 
default  of  payment  is  not  in  itself  a  punishment,  but  merely  a 
mode  of  compelling  payment,  it  is  held  that  such  imprison- 
ment is  in  no  sense  a  satisfaction  of  the  fine  imposed,  unless 
some  provision  is  made  that  the  prisoner  shall  work  out 
the  amount  of  the  fine  during  the  imprisonment.  It  would, 
therefore,  be  no  bar  to  an  action  of  scire  facias  on  an  appeal 
bond  to  collect  the  fine  and  costs,  neither  would  it  prevent 
subsequent  execution  to  collect  the  sum  due.^ 

An  oficnder  can  not,  however  be  compelled  to  labor  dur- 
ing his  imprisonment  in  order  to  satisfy  the  judgment 
against  him  unless  by  virtue  of  express  statutory  provision, 
and  the  labor  imposed  must  conform  to  the  letter  of  the 
power,^ 

§  158.  Imprisonment  as  a  penalty. — Ordinances  may 
prescribe  imprisonment  as  a  penalty  for  their  non-observ- 
ance only  when  express  authority  is  given.  The  only 
remedy  at  common  law  was  an  action  in  the  nature  of  deb)\ 
to  collect  the  pecuniary  penalties  attached  to  violation. 
The  power  to  imprison  never  arises  by  implication.^  "When 
this  power  is  conferred,  it  must,  like  all  other  final  provis- 
ions, be  strictly  construed.  The  literal  meaning  conveyed 
by  the  terms  of  the  grant  must  be  followed.  It  could  not 
authorize  an  ordinance  inflicting  imprisonment  for  failure 
to  pay  a  license  fee,  if  no  power  is  given  the  municipality 
to  make  such  failure  a  misdemeanor.* 

Imprisonment  as  a  direct  penalty  means  imprisonment 
in  pursuance  of  a  proper  judicial  determination  of  the 
guilt  of  an  ofl'ender,  in  a  prosecution  for  an  offense  actually 
committed.  If  that  is  the  penalty  prescribed  by  ordinance, 
no  authority  is  thereby  given  to  imprison  a  person  before 

(1)  Sheffield  v.  O'Day,  7  111.  App.  339. 

(2)  Ex  parte  Bedell,  20  Mo,  App.  125. 

(3)  Clarke's  Case,  5  Coke,  64;  City  of  London's  Case,  8  Coke,  127; 
Burlington  u.  Kellar,  18  la.  59;  Kinmundy  v.  Mahan,  72  111.  462. 

(4)  Desty  Taxation,  770. 


128  MUNICIPAL    POLICE    ORDINANCES.  [§    160* 

a  judicial  determination  of  his  liability.     He  can  not  be  im- 
prisoned before  trial.^ 

Whenever  a  limit  is  set  to  the  duration  of  the  imprison- 
ment that  maybe  inflicted  by  ordinance,  it  must  never  be 
exceeded.  An  ordinance,  however,  that  provides  a  method 
of  determining  or  computing  the  length  of  the  term, 
whereby  it  would  be  possible  to  exceed  the  constitutional 
or  statutory  limit,  may  be  enforced  up  to  that  limit.  The 
ordinance  would  not  ipso  facto  be  void.^ 

§  159.  Forfeiture.— At  common  law  and  in  England 
to-day  tines  alone  are  lawful  as  penalties  for  violation  of 
municipal  ordinances,  and  unless  express  authority  exists, 
to  collect  them  by  taking  the  property  of  the  offender. 
Collection  can  only  be  made  by  a  separate  action  in  the 
nature  of  debt.  Distress  against  the  goods  of  the  offender 
and  imprisonment  are  alike  unlawful.^  The  rights  of 
private  property  are  equally  sacred  to  the  common  law  of 
this  country.  Except  under  plain  authority,  forfeitures  ta 
secure  the  payment  of  fines  are  unlawful;*  and  when  con- 
ferred, the  power  must  be  exercised  in  strict  conformance 
to  its  terms.'  But  if  a  double  penalty  of  fine  and  forfeitura 
ia  imposed  by  ordinance,  the  fine  is  lawful,  although  the 
forfeiture  is  not.  The  two  penalties  are  severable,  and  the 
fact  that  one  is  in  excess  of  the  power  granted  would  not 
affect  the  validity  of  the  other.® 

§  160  Illustration. — An  ordinance  authorizing  the  ar- 
rest and  punishment  of  persons  who  keep  or  visit  gam- 

(1)  Low  V.  Exans,  16  Ind.  486. 

(2)  Keokuk  v.  Dressell,  47  la.  597. 

(3)  Kirk  v.  Nowill,  1  Term  Rep.  118. 

(4)  Heise  V.  Columbia,  6  Rich.  404;  Hart  v.  Albany,  9  Wend.  571 ; 
Cotter  v:  Doty,  5  Ohio,  394;  Rosebaugh  v.  Saffin.  10  Ohio,  31 ;  White  v. 
Tallman,  26  N.  J.  L.  67;  Phillips  v.  Allen.  41  l':«.  St.  4S1 ;  Kneedler  v. 
Norristown,  100  Pa.  St.  368;  Henke  v.  McCord,  55  la.  378;  New 
Hampton  V.  Conroy,  56  la.  498;  Varden  v.  Mount,  78  Ky.  86;  Sless- 
man  v.  Crozier,  80  Ind.  4S7. 

(5)  Clark  V.  Lewis,  33  111.  417;  Friday  v.  Floyd,  63  111.  50;  Bullock 
V.  Gromble,  45  111.  218. 

(6)  Kneedler  v.  Norristown,  100  Pa.  St.  368, 


S   160.1  KEMEDIES.  129 

bling  houses,  does  not  warrant  the  seizure  and  destruction 
of  the  instruments  of  gambling  that  may  be  found  in  such 
houses.^  Power  to  regulate  markets  authorizes  the  passage 
of  an  ordinance  requiring  the  true  capacity  of  all  baskets 
in  which  produce  is  sold  to  be  plainly  marked  on  the  bas- 
kets, but  could  not  warrant  forfeiture  of  all  baskets  not  so 
marked.'' 

But  where  the  thing  prohibited  is  of  itself  dangerous  to 
the  health  of  the  community,  provision  may  be  made  to 
abate  the  nuisance  on  duly  compensating  the  owner  for 
any  actual  loss.  Thus,  it  is  held  that  bread  may  be  for- 
feited if  the  loaves  fall  below  the  prescribed  standard 
weight,  which  is  required  to  be  stamped  thereon.^  The 
ultimate  object  of  such  regulation  is  to  keep  light  loaves 
out  of  the  market,  and  this  is  not  accomplished  by  a  simple 
punishment  of  the  baker  or  vender. 

The  occasions  just  referred  to  furnish  the  key  to  an  im- 
portant distinction  between  those  cases  where  forfeitures 
are  and  where  they  are  not  allowable.  If  the  gist  of  the 
offense  is  some  personal  act  that  tends  to  break  the  peace 
of  the  community,  the  fine  imposed  can  not  be  made  out  of 
the  offender's  property,  but  if  the  offense  is  based  on  the 
erection  and  maintenance  of  a  structure  which  menaces 
public  health  or  security,  or  on  the  keeping  or  production 
of  some  article  which  is  such  a  nuisance,  the  remedy 
ceases  to  be  directed  purely  against  the  individual,'but  it  is 
all  important  that  the  structure  or  article  should  be  removed 
or  altered  beyond  the  possibility  of  doing  harm.  In  the 
case  of  light  weight  loaves  of  bread,  the  defect  can  not  be 
remedied  by  rebaking  the  bread,  and  the  only  way  of 
keeping  such  bread  from  consumers  is  to  withdraw  it  en- 
tirely from  the  market. 

If  a  person  is  conducting  a  trade  or  business  under  a 
license  from  the  town,  and  commits  some  offense  against 
the  ordinance  regulating  the  manner  in   which   he  shall 

(1)  Ridgeway  v.  West,  60  Ind.  371. 

(2)  Phillips  V.  Allen,  41  Pa.  St.  481. 

(3)  Guillotte  V.  New  Orleans,  12  La.  Ann.  482;  In  re  Nasmith,  2  On- 
tario, 192. 

9 


130  MUNICIPAL    POLICE    ORDINANCES.  [§  161. 

conduct  his  business,  the  ofiense  is  of  a  personal  nature 
and  may  not  be  punished  by  forfeiture  of  his  license.* 
The  license  is  property,  and  so  is  the  right  to  conduct  the 
business.  "Without  express  authority  no  place  of  business 
can  be  closed  for  a  violation  of  the  ordinance  regulating 
its  conduct.^  Such  a  procedure  would  amount  to  a  distress, 
and  is  contrary  to  common  right.^ 

In  all  cases  where  the  remedy  of  the  municipality  in 
order  to  be  effective  must  be  enforced  against  the  property 
the  improper  use  of  which  constitutes  the  offense,  con- 
siderable expense  is  incurred  by  the  municipality,  and  this 
should  in  some  way  be  reimbursed  by  the  offender.  Under 
a  power  to  prevent  the  erection  of  wooden  buildings 
within  defined  limits,  an  unlawful  structure  may  be  re- 
moved. The  materials  removed  still  belong  to  the  person 
who  is  building,  but  the  corporation  may  lawfully  have  its 
remedy  against  them  in  order  to  secure  compensation  for 
the  expenses  incurred  in  their  removal.  The  same  is  true 
with  regard  to  any  nuisance  that  the  corporation  has  power 
to  abate. 

§  161.  Strays. — The  most  frequent  application  of  the 
rule  against  forfeiture  is  in  cases  arising  under  ordinances- 
for  the  prevention  of  strays  and  the  running  at  large  of 
animals.*  Power  to  restrain  cattle  from  running  at  large 
and  to  enact  such  ordinances  as  are  necessary  to  make  the 
restraint  effectual  does  not  authorize  a  sale  of  the  animals 
taken  up  in  order  to  satisfy  the  penalty  imposed  upon  their 
owner.*  The  animals  may  be  held  and  sold  to  defray  the 
cost  of  abating  the  nuisance,  but  not  to  pay  the  penalty. 

(1)  Heise  v.  Columbia,  6  Rich.  404 ;  Staats  v.  Washington,  44  N.  J.  L. 
605.    Contra,  Hurber  v.  Baugh,  43  la.  514. 

(2)  Ryan  v.  Jacob,  6  W.  L.  Bull.  (Ohio)  139;  Bolte  v.  New  Orleans, 
10  La.  Ann.  321 ;  Bright  v.  Toronto,  12  U.  C.  C.  P.  433.  Contra.  Towns 
V.  Tallahassee,  11  Fla.  130. 

(3)  Bergen  v.  Clarkson,  6  N.  J.  L.  352;  White  v.  Tallman,  26  N.  J. 
L.  67;  Gumming  v.  Savannah,  R.  M.  Charlt.  26. 

(4)  Varden  v.  Mount,  78  Ky.  86. 

(5)  Sleesman  v.  Crozier,  80  Ind.  487 ;  Wilcox  v.  Hemming,  68  Wis. 
144. 


§  162.]  REMEDIES.  131 

The  ordinauce  is  only  indirectly  aimed  at  the  owner  of  the 
stray  animals  ;  he  may,  in  fact,  be  wholly  beyond  the  cor- 
porate jurisdiction.  The  corporation  is  put  to  trouble  and 
expense  in  taking  up  the  strays  and  in  providing  a  suitable 
pound  for  their  retention  until  claimed  by  the  owner. 
The  animals  must  be  fed  and  cared  for.  To  meet  this  ex- 
pense the  animals  may  be  sold,  even  against  the  owner's 
consent,  although  the  owner  thereby  forfeits  his  property.' 

§  162.  Notice  to  the  owner. — Every  principle  of  justice 
demands  that  no  man  shall  be  deprived  of  his  property, 
even  though  by  his  own  act  or  neglect  he  may  have  al- 
lowed it  to  be  so  used  or  placed  as  to  violate  the  local  laws, 
without  first  afibrding  him  an  opportunity  to  contest  the 
fact  of  the  violation,  and,  when  the  fact  is  determined,  of 
saving  the  forfeiture  by  paying  such  fines  as  have  been  im- 
posed, and  by  compensating  the  public  for  its  outlay. 
Such  is  the  almost  uniform  holding  of  the  courts,  although 
the  Supreme  Court  of  Wisconsin,  deeming  the  necessity  of 
the  remedy  of  paramount  importance,  holds  that  an  ordi- 
nance that  authorizes  the  seizure,  impounding,  and  sale  of 
strays  without  any  prior  judicial  inquiry,  does  not  work  a 
forfeiture  within  the  constitutional  prohibition  of  forfeit- 
ures of  property  without  due  process  of  law  and  compen- 
sation.^ 

Before  a  sale  can  be  made  either  actual  or  constructive 
notice  must  be  given  to  the  owner.  It  may  be  personal  or 
by  advertisement.^  Due  notice  can  not  be  dispensed  with 
without  legislative  authority.*  And  the  prescribed  mode 
of  giving  notice  must  be  strictly  followed  in  order  to  justify 
the  proceeding.^     So,  where  an  ordinance  against  allowing 

(1)  Contra,  Gosselink  v.  Campbell,  4  la.  296.  Pro,  Fort  Smith  v.  Dod- 
son,  46  Ark.  301. 

(2)  Wilcox  V.  Hemming,  58  Wis.  144. 

(3)  Davies  v.  Morgan,  1  C.  &  J.  587;  Rosebaugh  v.  Saffin,  10  Ohio, 
31;  Hellen  v.  Noe,  3  Ired.  L.  493;  Shaw  v.  Kennedy,  N.  Car.  Term. 
Rep.  158 ;  Gilchrist  v.  Schnidling,  12  Kan.  263  ;  McKee  v.  McKee,  8  B. 
Mon.  433. 

(4)  Rosebaugh  v.  Saffin,  10  Ohio,  31. 

(5)  Wade  on  Notice,  §  1122. 


132  MUNICIPAL   POLICE   ORDINANCES.  [§  164. 

hogs  to  run  at  large  gives  the  owner  five  days  to  redeem 
the  strays,  and  allows  a  sale  to  defray  expenses  after  three 
days'  advertisement  of  the  sale,  the  owner  has  five  full 
days  time  exclusive  of  the  day  on  which  the  animals  are 
seized,  and  a  sale  could  not  be  made  until  three  days  after 
the  expiration  of  the  five  days,  or  until  the  ninth  day  after 
the  day  of  seizure. 

§  163.  Judicial  determination. — Although  the  acts  of 
seizure,  impounding,  and  sale  are  ministerial,  to  be  per- 
formed by  the  police  authorities  of  the  corporation,  some 
formal  preceding  should  be  had  to  determine  the  fact  that 
the  animals  seized  were  actually  running  at  large,  and  in 
which  the  owner  may  have  an  opportunity  of  being  heard 
and  contesting  the  justice  of  the  seizure  or  sale.^ 

If  possible,  personal  service  of  summons  should  be  made 
upon  the  owner  of  the  animals,  but  if  he  is  not  known,  or 
is  beyond  the  jurisdiction  of  the  court,  it  is  sufficient  that 
the  procedure  be  in  re  and  that  some  public  notice  be  given, 
of  the  time  and  place  of  sale. 

§  164.  Forfeiture  of  real  estate. — Those  are  really 
police  ordinances  which  make  the  construction  of  side- 
walks or  fences  obligatory  upon  the  owners  of  property 
adjacent  to  the  public  streets,  and  which  provide  that  in 
case  of  failure  to  comply  with  the  requirement  after  due 
notification,  the  corporate  authorities  may  proceed  to  con- 
struct the  walk  or  fence,  and  charge  the  owner  with  the 
cost  of  construction.  The  cost  is  generally  assessed  upon 
the  land,  by  authority  of  law,  and  if  not  paid  the  land  may 
be  sold  to  satisfy  it,  as  for  any  delinquent  taxes  due  to  the 
state  or  county,  thus  indirectly  working  a  forfeiture  for 
disobeying  the  ordinance.  This  is  considered  more  &b  a 
tax  than  as  a  penalty  and  is  looked  upon  with  favor.'    It 

(1)  White  r.  Haworth,  21  Mo.  App.  439. 

(2)  Varden  v.  Mou«t,  78   Ky.  86;  Baumgard  v.  Mayor,  9  La.  119; 
Rost  V.  Mayor,  15  La.  129;    Lanfear  v.  Mayor,  4   La.  97;  Shaw  v.  Ken- 
nedy, N.  Car.  Term   Rep.  158;    Darst  r.  Illinois,  51   111.286;   Willis  v. 
Legris,  45  111.  289 ;    Donovan  v.  Vicksburg,  29  Miss.  247 ;    Ex  parte 
Burnett,  30  Ala.  461 ;  Dill.  Mun.  Corp.,  §  353. 

(3)  Bonsall  v.  Lebanon,  19  Ohio,  418. 


§    164.]  REMEDIES.  133 

does  not  result  in  unequal  taxation  within  the  meaning  of 
that  term  as  used  in  constitutions.*  The  primary  burden 
is  upon  the  person  upon  whom  the  duty  is  imposed  by 
statute  or  authorized  ordinance,^  but  as  the  improvement 
is  a  benefit  to  the  land,  it  is  eventually  charged  upon  the 
land,  and  any  person  who  has  an  interest  therein,  or  who 
acquires  an  interest  after  the  construction  is  completed,  is 
liable  to  have  his  interest  sold  to  satisfy  the  lien.^  As  in 
other  proceedings  which  result  in  imposing  a  burden  on 
persons  or  property,  every  step  must  conform  strictly  to 
the  mode  prescribed  by  the  charter  or  statute.* 

(1)  Mayberry  v.  Franklin,  6  Humph.  368;  Washington  v.  Nashville, 
1  Swan  (Tenn.)  177. 

(2)  People  V.  Council,  54  N.  Y.  507. 

(3)  Highland  v.  Galveston,  54  Tex.  527, 

(4)  D'Antignac  v.  Augusta,  31  Ga.  700. 


134  MUNICIPAL   POLICE   ORDINANCES. 


CHAPTER  VII 

PROCEDURE— PLEADING— EVIDENCE. 

§  165.  Introduction. 

§  166.  The  tribunal. 

g  167.  Citizenship  does  not  disqualify  the  magistrate. 

g  168.  Form  of  the  action. 

§  169.  Nature  of  the  action. 

§  170.  Holdings  of  the  diflFerent  states. 

g  170a.  General  conclusion. 

g  171.  Joinder  of  causes  of  action. 

g  172,  The  complaint. 

g  172a.  The  title  of  the  case. 

g  173.  The  offense  must  be  distinctly  alleged. 

g  174.  Reference  made  to  the  ordinance  violated. 

g  175.  Exceptions  need  not  be  negatived. 

g  176.  The  conclusion  of  the  complaint. 

g  177.  Signature  to  complaint. 

g  178.  Arrest  before  trial. 

g  179.  What  the  vrarrant  should  contain. 

g  180.  Arrests  made  without  a  warrant. 

g  181.  Trial  by  jury. 

g  182.   Arraignment  and  plea. 

g  183.  Evidence. 

g  184.  Judicial  notice. 

g  185.  How  ordinances  are  proved. 

§  186.   Record  of  council  proceedings  as  evidence. 

g  187.  Proof  of  publication. 

g  188.  Presumption  that  ordinances  are  reasonable. 

g  189.   Reasonableness  a  question  of  law. 

g  190.  Proof  of  time  and  place  of  committing  the  offense. 

g  191.  Proof  that  act  does  not  fall  within  exceptions. 

g  192.  Testimony  of  defendant. 

g§  193,  194.   Construction  of  ordinances.    • 

g  195.  Examples  of  application  of  rules  of  construction. 

§  196.  Defenses  to  prosecutions. 

g  197.  Effect  of  repeal  of  an  ordinance. 

g  198.  Former  conviction. 

g  199.  Other  defenses. 

g  200.  Doctrine  of  estoppel  applied  to  defenses. 

g  201.  Estoppel  of  the  corporation. 

g  202.  Form  of  the  judgment. 

g  203.  The  order  of  commitment  to  jail. 


§    166.]  PROCEDURE — PLEADING — EVIDENCE.  135 

§  165.  Introduction. — The  enforcement  of  municipal 
ordinances  is  intrusted  to  the  local  authorities,  and  must 
be  accomplished  through  proceedings  in  a  local  court.  The 
state  laws  seldom  prescribe  detailed  rules  of  practice  and 
procedure  in  these  local  courts,  and  we  therefore  find  a 
deplorable  state  of  confusion  in  the  methods  ordinarily 
followed.  They  are  based  partly  upon  direct  statutory 
provisions,  partly  on  custom,  partly  on  the  by-laws  of 
the  corporation  itself,  but  more  often  on  an  attempt  to  imi- 
tate the  rules  laid  down  for  analogous  proceedings  in  the 
state  courts.  When  we  consider  that  the  offenses  are  of  a 
minor  character,  that  the  necessity  for  a  speedy  remedy  is 
more  urgent,  that  local  courts  are  seldom  organized  under 
complete  systems  such  as  underlie  the  existence  of  state 
tribunals,  and  that  the  ordinances  to  be  enforced  are  of  a 
confusing  variety  and  scope,  it  becomes  apparent  that  the 
rules  observed  in  higher  courts  are  often  wholly  impractica- 
ble or  inapplicable  to  practice  before  the  municipal  courts. 
Kules  must  be  varied  and  modified  to  meet  the  necessi- 
ties of  each  case.  Rules  of  evidence  are  about  the  only 
rules  that  can  well  be  applied  in  the  local  courts  without 
some  modification.  Because  the  practice  in  these  courts  is 
usually  left  to  its  own  development  and  is  seldom  regu- 
lated by  extensive  legislation,  it  is  much  easier  to  formu- 
late rules  which  will  be  applicable  to  procedure  in  all  the 
states,  than  it  is  in  regard  to  actions  brought  in  the  state 
courts. 

§  166.  The  tribunal. — In  England  all  actions  to  enforce 
ordinances  are  in  the  nature  of  debt  or  assumpsit  to  recover 
the  specific  fine,  and  are  brought  before  the  ordinary  tri- 
bunals having  jurisdiction  to  entertain  such  actions.  In 
America  the  practice  is  very  diverse,  but  some  special  tri- 
bunal is  usually  created  for  the  trial  of  causes  based  upon 
violation  of  local  ordinances.  Its  jurisdiction  is  often,  for 
the  sake  of  convenience,  extended  over  petty  offenses  against 
the  laws  of  the  state.  Remedies  under  ordinances  will, 
however,  never  be  allowed  to  fail  for  want  of  a  tribunal, 
and  if  no  special  tribunal  is  provided,  actions  to  enforce 


136  MUNICIPAL    POLICE    ORDINANCES.  [§  166. 

penalties  may  be  brought  in  the  established  courts  of  the 
state/  If  a  special  tribunal  is  provided  by  general  law  such 
actions  are  restricted  to  it.  It  acquires  exclusive  jurisdic- 
tion unless  the  general  law  plainly  indicates  that  such  is 
not  the  intention  of  the  state  legislature.  The  power  to 
hear  and  decide  actions  brought  to  enforce  ordinances  in- 
volves the  liberty  and  rights  of  property  of  the  individual. 
It  is  derogatory  to  common  right  and  can  only  be  exercised 
by  such  tribunals  as  have  plain,  unmistakable  authority,  and 
in  strict  accordance  with  the  terms  of  the  grant.  If  the 
charter  provides  that  justices  of  the  peace  shall  hear  pro- 
ceedings based  on  the  ordinances  of  the  municipality,  the 
municipality  can  not  supplement  the  charter  by  giving 
concurrent  jurisdiction  to  the  mayor.^  The  corporation 
can  not  erect  its  own  tribunals  if  none  are  provided  by  the 
law  under  which  it  is  established,  nor  can  it  erect  different 
tribunals  from  those  that  are  expressly  authorized.' 

"When  special  tribunals  are  created  for  the  purpose  of 
entertaining  actions  to  enforce  municipal  ordinances,  their 
jurisdiction  is  limited  strictly  to  that  purpose,  and  only 
extends  to  such  proceedings  as  may  be  necessary  to  compel 
obedience  to  the  local  laws.  They  may  control  the  person 
of  the  offender  and  his  property  so  far  as  concerns  the  man- 
ner of  its  use.  It  may  be  necessary  to  determine  the  title 
to  property  incidentally,  but  such  determination  is  only 
effective  as  regards  the  remedy  being  pursued.  No  claim 
to  the  property  can  be  based  on  it.  It  could  not  even  be 
used  in  evidence  in  an  action  in  a  state  court  involving  the 
title  to  the  same  property.*  Local  courts  are,  in  short;  lim- 
ited in  their  jurisdiction  strictly  to  the  purposes  of  their 
creation. 

--  Objection  to  the  jurisdiction  must  be  made  before  sub- 
mission to  the  process  and  judgment  of  the  court.  If  the 
person  whose  rights  are  in  jeopardy  fails  to  question  the 

(1)  Columbia  v.  Harrison,  2  C.  C.  (S.  Car.)  213. 

(2)  Staatesv.  Washington,  45  N.  J.  L.  318. 

(3)  Barter  v.  Commonwealth,  3  Pen.  &  W.  253;  Deel  v.  Pittsburgh 
3  Watts,  363. 

(4)  Beecher  v.  People,  38  Mich.  289. 


§  167.]       PROCEDURE — PLEADING — EVIDENCE.         157 

jurisdiction  at  the  first  step,  he  will  be  estopped  from  so 
doing  in  the  appellate  court.^  If  suit  be  begun  before  one 
justice,  but  for  some  insufiicient  reason  is  continued  before 
a  different  justice,  and  the  defendant  allows  the  trial  to  pro- 
ceed without  objection,  his  appearance  and  silence  will  be 
a  bar  to  subsequent  objection.^ 

The  jurisdiction  of  the  court  is  in  no  sense  dependent 
upon  the  validity  of  the  ordinance  ;  that  is,  an  objection  to 
the  jurisdiction  by  demurrer  or  motion  will  not  be  sus- 
tained by  proof  of  the  invalidity  of  the  ordinance  sought 
to  be  enforced.^ 

§  167.  Citizenship  does  not  disqualify  the  magistrate. 
Every  citizen  of  a  municipality  has  an  interest  in  the  prompt 
and  vigorous  enforcement  of  its  ordinances.  This  interest 
may  be  only  such  as  all  public  spirited  persons  have  in  the 
peace  and  good  order  of  the  community,  or  it  maybe  pecu- 
niarily material  as  in  cases  where  the  fines  collected  inure 
to  the  benefit  of  the  local  revenue,  and  thereby  slightly  re- 
duce the  burdens  of  taxation.  No  one  would  think  of 
claiming  that  the  judge  of  a  state  court  is  disqualified  from 
hearing  prosecutions  brought  under  the  penal  laws  of  the 
state,  by  reason  of  his  interest,  as  a  public-minded  citizen, 
in  the  due  enforcement  of  those  laws.  Earlier  English 
corporations  were  not  municipal,  but  were  close  corpora- 
tions, composed  of  those  who  followed  the  same  trade,  and 
it  was  held  that  the  local  magistrate  was  disqualified  to  try 
violations  of  their  by-laws,  if  he  chanced  to  be  a  member 
of  the  prosecuting  corporation.*  Reasoning  from  the  false 
analogy  of  such  holdings,  the  claim  has  often  been  seriously 
made  that  the  personal  interest  of  a  local  justice,  mayor,  or 
magistrate  is  so  direct  and  material  as  to  disqualify  him  to 
try  actions  brought  to  enforce  the  penalties  imposed  by  the 
ordinances  of  the  municipality  of  which  he  is  a  citizen. 
The  authorities  are  uniformly  opposed  to  the  validity  of 

(1)  Tisdale  v.  Minonk,  46  111.  9. 

(2)  Wiggins  V.  Chicago,  68  111.  372. 

(3)  WoodruflFi;.  Stewart,  63  Ala.  208. 

(4)  Hesketh  v.  Braddock,  3  Burr.  1847. 


138  MUNICIPAL    POLICE    ORDINANCES.  [§  168, 

such  an  objection.     The  magistrate's  personal  interest  in 
the  fine  is  far  too  remote  to  defeat  his  jurisdiction.^ 

§  168.  Form  of  the  action. — The  common-lar/  remedy 
for  violation  of  ordinances  consisted  of  a  civil  action  either 
of  debt  or  on  the  case  in  assumpsit^  brought  against  the  of- 
fender to  recover  the  amount  of  the  penalty  imposed ;  debt^ 
when  the  penalty  was  considered  as  a  certain  amount  of 
liquidated  damages,  and  assumpsit^  when  the  act  complained 
of  was  merely  considered  as  a  violation  of  a  duty  owed  to 
the  community  by  the  offender.^  And  in  this  country  an 
action  in  the  nature  of  debt  is  still  the  proper  remedy  un- 
less, as  is  generally  the  case,  the  charter  or  general  law 
contains  some  other  provision.'  When  the  statute  is  silent 
it  is  proper,  though  unnecessary,  for  the  corporation  to  or- 
dain that  penalties  shall  be  recovered  by  action  in  debt; 
such  an  ordinance  would  simply  be  a  formal  recognition 
of  the  rule  of  law.*  In  the  majority  of  the  states  the  gen- 
eral municipal  code  or  the  charter  provides  for  a  special 
proceeding  to  be  instituted  before  some  local  magistrate. 
This  special  proceeding  is  more  or  less  summar}',  and  is 
usually  divested  of  many  of  the  formalities  and  technical- 
ities of  actions  in  higher  courts. 

"Whether  the  line  or  penalty  is  definitely  fixed  by  ordi- 
nance, or  is  only  restricted  to  certain  limits  within  which 
the  magistrate  is  to  exercise  his  discretion,  the  action  is 
always  brought  to  enforce  a  penalty,  the  benefit  of  which 
inures  to  the  corporation,  and  unless  the  law  of  the  state 
requires  the  action  to  be  brought  in  the  name  of  the  state 

(1)  Commonwealth  v.  Worcester,  3  Pick.  462;  Thomas  v.  Mt.  Vernon, 
9  Ohio,  290;  Deitz  v.  Central,  1  Col.  323;  Jonesborough  v.  McKee,  2 
Yerg.  167;  Council  v.  Pepper,  1  Rich.  364;  Queen  v.  Justices,  4  Q.  B. 
Div.  522;  s.  c,  29  Moak  Eng.  Rep.  61 ;  Queen  v.  Milledge,  4  Q.  B.  Div. 
332;  8.  c,  28  Moak  Eng.  Rep.  784. 

(2)  Dill.  Mun.  Corp.,  §  409;  1  Roll.  Abr.  366,  1.  48;  Clift.  901. 

(3)  Brookville  v.  Gagle.  73  Ind.  117;  Jacksonville  v.  Block,  .36  III. 
507;  Israel  v.  Jacksonville,  2  111.  290;  Ewbanks  v.  Ashley,  36  111.  177; 
Weeks  v.  Foreman,  16  N.  J.  L.  237;  State  v.  Zeigler,  32  N.  J.  262; 
Williamson  v.  Commonwealth.  4  B.  Mon.  146. 

(4)  Barter  v.  Commonwealth,  3  Pa.  253 


§  169.]  PROCEDURE — PLEADING — EVIDENCE.  139 

the  corporation  is  the  proper  party  plaintiff.  If  the  statute 
makes  any  direction  it  must  be  closely  followed.*  No  other 
form  could  be  legalized  by  an  ordinance  than  the  one  pre- 
scribed.^ If  authorized  to  sue  "in  the  name  of  the  cor- 
poration," the  name  conferred  or  recognized  by  the  charter 
or  general  law  must  be  used,  though  a  slight  variation 
would  be  considered  immaterial.^ 

Where  no  direction  at  all  is  made  it  is  advisable  to  use 
such  name  as  may  be  incidentally  used  in  the  charter  or 
statute,  or  in  the  absence  of  such  a  name,  that  by  which 
the  municipality  is  generally  known,  or  by  which  it  is  ac- 
customed to  appear  in  court.  In  such  case,  an  action  in  the 
name  of  the  council,  of  the  overseers,  or  of  the  president 
and  trustees  would  be  unobjectionable.* 

§  169.  The  nature  of  the  action. — The  rules  of  proce- 
dure and  evidence  applicable  to  proceedings  to  enforce 
penalties  for  the  violation  of  ordinances  depend  largely 
upon  the  nature  of  the  action,  whether  civil  or  criminal. 
At  common  law  the  only  means  of  enforcing  ordinances 
was  an  action  in  debt  brought  before  tribunals  of  general 
jurisdiction,  and  the  action  was  therefore  purely  civil. 
Certainly,  the  erection  of  special  tribunals  for  such  actions, 
and  the  prescription  of  different  modes  of  procedure  and 
practice,  does  not  alter  the  civil  nature  of  the  action  so  long 
as  a  fine  only  is  sought  to  be  enforced.  And,  as  we  have 
seen,  the  imprisonment  that  is  often  inflicted  for  failure  to 
pay  a  fine  is  considered  a  means  of  enforcing  payment  and 
not  as  a  punishment.  Great  diversity  of  opinion  exists  as- 
to  the  nature  of  actions  which  may  result  in  iniprisonm.ent 
as  a  part  or  the  whole  of  the  punishment.  Fines  may  be 
considered  as  debts  or  as  liquidated  damages,  but  imprison- 
ment is  a  penalty  directed  against  the  person  of  the 
offender,  one  that  deprives  him  of  liberty.     For  the  pur- 

(1)  State  V.  Zeigler,  32  N.  J.  262. 

(2)  Weeks  v.  Forman,  16  N.  J.  237. 

(3)  Powers  v.  Decatur,  54  Ala.  214. 

(4)  Charleston  v.  Oliver,  IG  S.  C.  47;  Williamson  v.  Commonwealtlv 
4  B.  Men.  146;  Hirschoff  v.  Beverly,  45  N.  J.  L.  288. 


140  MUNICIPAL    POLICE   ORDINANCES.  [§  169. 

poses  of  determining  rules  of  procedure,  actions  of  this 
class  are  best  divided  into  quasi-criminal  and  criminal 
actions.  The  majority  of  ordinances  are  directed  against 
offenses  which  have  no  existence  except  as  defined  by  the 
ordinance.  These  offenses  are  not  of  the  same  grade  with 
offenses  against  the  state,  and  the  actions  brought  to  pun- 
ish them  are  only  quasi-criminal.^  But  actions  brought  to 
enforce  the  punishment  of  imprisonment  for  acts,  which 
are  already  crimes  or  misdemeanors  under  the  laws  of  the 
state,  are  criminal,  and  the  same  right  or  rights  equally  ef- 
ficient should  be  secured  to  the  accused  in  the  municipal 
court  that  are  reserved  to  him  in  the  state  courts. 

There  is  no  objection  to  a  double  punishment  for  the 
same  act  considered  as  two  distinct  offenses,  one  against 
the  public  at  large,  the  other  against  the  peace  of  the  local 
community,  but  the  local  community  should  not  be  allowed 
to  provide  or  follow  modes  of  procedure  that  might  make 
conviction  easier  under  the  ordinance  than  under  the  stat- 
ute. This  last  class  of  actions  are  not  very  numerous,  and 
still  we  apprehend  that  they  are  more  apt  to  work  unlawful 
infringement  of  the  personal  rights  of  citizens  than  any 
other  proceeding,  and  their  conduct  should  be  guarded 
with  closer  scrutiny  than  simple  civil  or  quasi-criminal 
actions.  For  instance,  the  constitutional  guarantee  of  trial 
by  jury,  whenever  a  person  is  tried  for  an  offense  punish- 
able by  imprisonment,  would  defeat  the  jurisdiction  of  a 
local  magistrate  over  such  cases,  unless  the  law  creating 
his  tribunal  makes  provision  for  jury  trial*  But  the 
applicability  of  the  constitutional  guarantee  to  prosecution 
under  ordinances  ceases  whenever  the  act  complained  of  is 
not  included  among  the  offenses  punisnable  by  the  laws  of 
the  state.^ 

Much  confusion  arises  from  a  careless  use  of  the  words 
*' crime"  and  "  criminal."  A  crime  is  technically  an  act 
made  penal  by  the  laws  of  the  state  or  general  govern- 

(1)  Wiggins  V.  Chicago,  68  III.  373;  Floyd  v.  Eutontin,  14  Ga.  355; 
Greenfield  v.  Mook,  12  111.  App.  281 ;  State  v.  Lee,  27  Minn.  445. 

(2)  Thomas  v.  Ashland,  12  O.  S.  124. 

(3)  Monroe  v.  Meuer,  35  La.  Ann.  1192. 


I  §  170.]  PROCEDURE — PLEADING — EVIDENCE.  141 

ment,  and  the  proceeding  brought  to  enforce  the  punish- 
ment prescribed  by  the  state  law  is  a  criminal  prosecution. 
It  is  preferable  not  to  extend  the  application  of  these  terms 
to  offenses  against  ordinances,  unless  in  relation  to  offenses 
common  to  both  the  state  and  the  municipal  law,  in  which 
case  the  rules  of  procedure  in  the  local  court  should  con- 
form to  those  in  the  state  court  in  all  their  essential  fea- 
tures.^ 

The  extent  to  which  proceedings  brought  to  punish 
quasi-criminal  offenses  must  conform  to  the  criminal  codea 
and  rules  of  practice  in  the  state  courts  is  decided  very 
differently  in  different  states. 

§  170.  Holdings  of  the  various  states. — The  following 
digest  of  decided  cases  shows  the  tendency  to  be  toward 
very  much  less  strict  rules  of  procedure  in  the  enforcement 
of  ordinances : 

(a)  Alabama.  Such  actions  are  so  far  criminal  as  to- 
disqualify  the  defendant  from  testifying  in  his  own  behalf, 
as  is  the  rule  in  regular  criminal  proceedings.*  And,  in. 
general,  stricter  rules  of  procedure  are  observed  than  in 
civil  cases.^ 

(6)  California.  Such  actions  are  criminal  and,  unless 
some  contrary  provision  is  made  by  statute,  they  should  be 
brought  in  the  name  of  the  people  like  prosecutions  under 
the  penal  laws  of  the  state* 

(c)  Georgia.  The  right  of  trial  by  jury  is  not  violated  by 
imposing  fines  for  violations  of  municipal  ordinances  to  be 
recovered  by  actions  before  a  tribunal  that  is  not  provided 
with  a  jury.^ 

(d)  Illinois.  Actions  for  violations  of  penal  ordinances 
are  in  the  nature  of  actions  on  tort,  but  they  are  not  such 

(1)  Mixer  v.  Supervisors,  26  Mich.  422;  Wayne  County  v.  Detroit,. 
17  Mich.  390;  Alexander  v.  Council,  54  Miss.  659 

(2)  Mobile  v.  Jones,  42  Ala.  630. 

(3)  Fuhrman  v.  Huntsville,  54  Ala.  263. 

(4)  Santa  Barbara  v.  Sherman,  61  Cal.  57 ;  People  v.  Johnson,  30^ 
Cal.  98. 

(5)  Williams  v.  Augusta,  4  Ga.  509 ;  Floyd  v.  Eutontin,  14  Ga.  354. 


142  MUNICIPAL    POLICE   ORDINANCES.  [§  170. 

penal  actions  as  require  security  to  be  given  for  costs, 
under  a  statutory  provision  that  security  for  costs  must  be 
given  by  the  informer  in  penal  actions.^ 

(e)  Indiana.  The  remedy  under  ordinances  is  a  civil 
action  brought  to  recover  the  common-law  penalties.*  It 
makes  no  difference  that  the  action  is  begun  by  the  service 
of  a  warrant  of  arrest.^  And  the  rules  of  practice  in  civil 
cases  must  be  followed  * 

(/)  Iowa.  Such  actions  need  not  be  brought  in  the 
name  of  the  state,  not  being  criminal  prosecutions.  The 
complaint  filed  is  not  a  process  within  the  meaning  of  the 
statutory  provision  that  all  process  in  criminal  prosecution 
shall  be  in  the  name  of  the  state.' 

(^)  Kansas.  The  municipality  can  sue  in  its  own  name, 
unless  the  act  complained  of  is  also  a  penal  offense  against 
the  laws  of  the  state,  in  which  case  the  proceeding  is  a 
criminal  prosecution,  which  must  be  governed  by  the 
rules  of  criminal  procedure.® 

{h)  Massachussetts.  Such  actions  are  public  prosecutions 
governed  by  the  penal  code  of  procedure,  although  unlike 
actions  under  the  state  laws,  in  that  no  costs  are  allowed 
the  accused  in  case  of  acquittal.^ 

(i)  Michigan. — Prosecutions  under  municipal  ordinances 
are  not  criminal  proceedings  within  the  provisions  of  the 
penal  code  of  procedure,  but  are  merely  penal  actions  on 
the  part  of  the  municipality  for  local  purposes.** 

(1)  President  v.  Holland,  19  111.  271 ;  Quincy  v.  Ballance,  30  111.  185; 
Lewiston  v.  Proctor,  23  111.  533. 

(2)  Brookville  v.  Gagle,  73  Ind.  117;  Quigley  v.  Aurora,  50  Ind.  28; 
Greensburg  v.  Corwin,  58  Ind.  518. 

(3)  Goshen  v.  Croxton,  34  Ind.  239;  Commissioners  v.  Chissom,  7 
Ind.  688. 

(4)  Goshen  v.  Croxton,  34  Ind.  239;  Miller  v.  O'Reilly,  84  Ind.  168 
(as  to  appeal  bonds). 

(5)  Davenport  v.  Bird,  34  la,  524. 

(6)  Weitzel  v.  Concordia,  14  Kan.  446.  Contra,  Emporia  v.  Volmer, 
12  Kan.  622. 

(7)  Dill  Mun.  Corp.,  §412;  In  re  Goddard,  16  Pick.  504;  Common- 
wealth V.  Worcester,  3  Pick.  462. 

(8)  Cooper  v.  People,  41  Mich.  403 ;  People  v.  Detroit,  18  Mich.  445. 


§  170.]  PROCEDURE — PLEADING — EVIDENCE.  143 

(J)  111  Minnesota  such  actions  are  called  quasi-criminal, 
and  statutory  provisions  for  the  regulation  of  procedure  in 
prosecutions  for  crimes  are  not  applicable/ 

(k)  Missouri.  Such  proceedings  are  purely  civil,  and  it 
is  wholly  immaterial  whether  the  form  of  the  action  be 
civil  or  criminal.'* 

(I)  In  Nebraska  the  statute  is  practically  the  same  as  in 
Iowa,  but  contrary  to  the  holding  in  Iowa  actions  of  this 
kind  are  considered  criminal.^ 

(in)  New  Hampshire  courts  hold  likewise  that  prosecutions 
for  offenses  against  ordinances  are  criminal  in  their  na- 
ture.* 

(n)  New  Jersey.  Proceedings  in  this  state  more  clearly 
adhere  to  the  old  common-law  procedure  than  in  the  other 
states.  Actions  brought  to  enforce  pecuniary  penalties 
under  ordinances  are  civil,  and  even  if  in  the  form  of  an 
information,  part  of  the  penalty  going  to  the  informer,  the 
action  is  qui-tarn  and  civil.^ 

(o)  New  York.  Offenses  against  ordinances,  however 
punished,  are  neither  crimes  nor  misdemeanors.® 

(p)  Ohio.  In  this  state  it  is  apprehended  that  such  ac- 
tions would  be  considered  quasi-criminal  only.  Its  supreme 
court  has  called  attention  incidentally  to  the  fact  that  the 
common-law  civil  action  in  the  nature  of  debt  is  still  law- 
ful, unless  expressly  superseded,  to  recover  pecuniary  pen- 
alties;^ and  it  has  also  been  said  that  "many  offenses,  de- 
cidedly immoral  and  mischievous  in  their  tendencies,  are 
only  quasi-criminal  and  properly  fall  under  the  jurisdiction 
of  a  justice  or  mayor.^  Still,  where  the  complaint  failed  to 
allege  that  an  action  was  for  a  second  offense  against  an 

(1)  State  V.  Lee,  27  Minn.  445. 

(2)  St.  Louis  V.  Vert,  84  Mo.  204;  Ex  parte  Hollwedell,  74  Mo.  395; 
Ex  parte  Kiburg,  30  Mo.  App.  442. 

(3)  Brownville  v.  Cook,  4  Neb.  102. 

(4)  State  V.  Stearns,  31  N.  H.  106. 

(5)  Brophy  v.  Perth  Amboj,  44  N.  J.  L.  217  ;  Kip  v.  Patterson,  26  N. 
J,  L.  298;   Keeler  v.  Milledge,  24  N.  J.  L.  142. 

(6)  Wood  V.  Brooklyn,  14  Barb.  431. 

(7)  Cincinnati  v.  Gwynne,  10  Ohio,  192. 

(8)  Markle  v.  Akron,  14  Ohio,  586. 


144  MUNICIPAL   POLICE   ORDINANCES.  [§  170. 

ordinance  that  imposed  heavier  fines  for  each  repetition  of 
an  offense,  the  court  held  that  it  was  a  fatal  omission,  and 
that  the  rule  of  criminal  pleading  would  apply.* 

(r)  Wisconsin.  In  no  other  state  has  this  question  re- 
ceived more  thorough  consideration  than  in  Wisconsin^ 
and  the  position  finally  adopted  by  the  courts  is  the  most 
logical  and  the  one  to  which  other  states  are  tending,  if  they 
have  not  already  adopted  it.  At  first  it  was  held  that 
even  actions  brought  to  enforce  the  payment  of  a  fine  are 
criminal  prosecutions  within  the  meaning  of  the  state  bill 
of  rights,  which  provides  that  "in  all  criminal  prosecu- 
tions the  accused  shall  be  entitled  to  demand  the  nature  and 
cause  of  the  accusation  against  him."^  Referring  to  that  de- 
cision. Judge  Dillon  expresses  his  belief  that  such  a  broad 
principle  can  hot  be  maintained  where  the  act  charged  "  is 
not  a  crime  at  common  law  or  in  its  essential  nature ;"  ^  and 
the  later  decisions  in  Wisconsin  fully  maintain  him  and  go 
even  farther.  If  the  offense  is  a  crime  under  the  state  law, 
the  action  is  criminal,  but  otherwise,  at  most  quasi-crimi- 
nal.* In  cases  punishable  by  imprisonment,  and  probably 
in  all  cases  whether  the  oftense  is  also  covered  b}^  the  state 
law  or  not,  the  right  of  trial  by  jury  may  be  waived  by 
stipulation  between  the  parties.*  The  action  is  purely  civil, 
BO  far  as  the  remedy  under  the  ordinance  is  concerned,  and 
an  offense  is  not  a  misdemeanor,  if  prohibited  by  the  ordi- 
nance alone,  and  not  by  the  state  law.® 

(s)  Wyoming.  In  order  to  avoid  all  question  it  is  pro- 
vided by  the  code  of  Wyoming  that  actions  brought  to 
enforce  municipal  ordinances  are  purely  civil,  to  be  gov- 
erned by  civil  procedure.'^ 

(1)  Larney  v.  Cleveland,  34  0.  S.  599. 

(2)  Fink  v.  Milwaukee,  17  Wis.  26. 

(3)  Dill.  Mun.  Corp.,  §  412,  note. 

(4)  Oshkosh  V.  Schwarz,  55  Wis.  483;  Sutton  v.  McConnell,  46  Wis. 
269. 

(5)  Sutton  V.  McConnell,  46  Wis.  269. 

(6)  Chafin  v.  Waukesha  County,  62  Wis.  463. 

(7)  Jenkins  v.  Cheyenne,  1  Wy.  Ter.  287. 


§  172.]  PROCEDURE — PLEADING — EVIDENCE.  145 

§  170a.  General  conclusion. — In  general  it  may  be  said 
that  every  rule  of  procedure  provided  by  statute  or  ordir 
nance  must  be  strictly  followed,  and  especially  so  when  the 
action  may  result  in  a  forfeiture  of  property,  or  in  impris- 
onment as  a  penalty.^  If  no  provision  at  all  be  made,  the 
procedure  should  coftform  as  closely  as  practicable  to  pro- 
cedure in  similar  actions.  Thus,  if  jurisdiction  over  of- 
fenses against  ordinances  is  given  to  an  existing  tribunal, 
the  same  rules  should  be  observed  that  are  prescribed  for 
procedure  in  other  causes  brought  before  it.^  So,  a  justice 
would  have  no  right  to  refuse  a  jury  trial  if  compulsory  in 
other  cases  brought  before  him.^ 

§  171.  Joinder  of  causes  of  action. — If  the  action  be 
considered  as  brought  to  recover  a  debt,  or  liquidated  dam- 
ages, as  at  common  law,  there  could  be  no  objection  to 
joining  claims  for  several  penalties  in  one  action.^  It 
seems,  however,  that  the  offenses  must  be  against  the  same 
ordinance,  and  not  against  two  different  ordinances,  how- 
ever closely  related  by  their  nature.*  Even  where  it  is 
customary  to  join  such  causes  of  action  it  is  optional  with 
the  complainant,  and  several  causes  of  action  need  not  be 
joined  so  that  the  aggregate  of  the  penalties  exceeds  the 
limits  of  the  magistrate's  jurisdiction.^  In  Iowa  special 
authority  is  conferred  by  statute  to  proceed  against  several 
offenses  in  a  single  information,  and  the  same  provision 
may  be  made  by  ordinance.^  For  further  treatment  of 
joinder  of  claims  see  ante,  sec.  152. 

§  172.  The  complaint. — In  a  proceeding  to  enforce  the 
penalty  for  a  violation  of  an  ordinance,  the  first  step  to  be 
taken  is  to  file  with  the  proper  magistrate  a  complaint  or 

(1)  People  V.  Whitney's  Point,  32  Hun,  508. 

(2)  Greeley  y.  Passaic,  42  N.  J.  87. 

(3)  People  V.  Cox,  76  N.  Y.  47. 

(4)  Brooklyn  v.  Cleves,  Hill  &  Den.  Sup.  231. 

(5)  Kensington  v.  Glenat,  1  Phila.  393. 

(6)  Whitehall  v.  Meaux,  8  111.  App.  182. 

(7)  Jackson  v.  Boyd,  53  la.  536. 

10 


146  MUNICIPAL    POLICE    ORDINANCES.  [§  172a. 

pleading  in  the  nature  of  an  information.  This  must  be 
in  writing.^  A  sentence  would  be  wholly  void  unless  based 
upon  a  formal  complaint,  even  though  the  accused  should 
appear  before  the  magistrate  and  acknowledge  his  guilt. 
Such  a  sentence  could,  however,  only  be  impeached  hy  the 
offender  himself.  This  preliminary  pleading  may  be  called 
an  information,  petition,  complaint,  affidavit,  or  by  any 
other  name,  but  in  order  to  be  sufficient  it  must  contain  a 
clear  statement  of  the  offense  charged  and  a  reference  to 
the  ordinance  violated.  Great  formality  is  seldom  required, 
and  even  when  the  remedy  is  an  action  of  debt  brought  be- 
fore the  local  court  it  is  not  at  all  necessary  to  file  a  com- 
mon-law declaration.^  So,  when  the  action  is  considered 
criminal,  the  strict  formality  of  an  indictment  need  not  be 
observed,  so  long  aa  the  principal  element,  the  offense,  be 
definitely  described  and  alleged.  In  order  that  the  com- 
plaint may  not  be  open  to  any  manner  of  objection,  it 
should,  however,  contain  the  name  of  the  tribunal  before 
which  it  is  filed,  a  formal  title,  a  full  and  complete  allega- 
tion of  the  commission  of  an  offense,  a  reference  to  the 
ordinance  prohibiting  the  act  complained  of,  and  a  conclu- 
sion. The  complaint  must  be  signed  by  the  informer,  and 
sworn  to  before  the  magistrate  or  some  other  officer  having 
power  to  administer  such  an  oath.  It  then  becomes  the 
duty  of  the  magistrate  to  institute  such  further  action  as 
will  bring  the  accused  before  the  court  in  a  lawful  manner, 
and  as  will  enable  some  formal  decision  to  be  rendered. 

§  172a.  The  title. — Every  complaint  should  be  entitled 
for  the  purpose  of  identification,  if  for  no  other  reason, 
but  the  total  lack  of  a  title  will  not  be  fatal  to  its  validity 
if  the  complaint  concludes  "  against  the  form  of  the  ordi- 
nance in  such  case  provided  by  the  city  of  X,"  or  "  against 
the  peace  and  dignity  of  the  city  of  X,"  so  that  it  shows  on 
its  face  that  the  proceeding  is  brought  on  behalf  of  the  city 
of  X.^    The  object  of  a  formal  title  is  to  inform  the  offender 

(1)  Prell  V.  McDonald,  7  Kan.  445. 

(2)  Dietz  V.  Central,  1  Col.  323. 

(3)  Information  v.  Oliver,  21  S.  Car.  318. 


§  173.]  PROCEDURE — PLEADING — EVIDENCE.  147 

of  what  law  he  is  charged  with  violating.  This  object  is 
attained  with  sufficient  accuracy  if  the  information  is  con- 
veyed by  the  wording  of  the  body  of  the  complaint.  The 
issue  is  fully  formed  and  apparent  without  any  title.^ 
Whenever  a  title  is  made  necessary  by  statute,  but  no  par- 
ticular form  is  prescribed,  any  form  is  sufficient.  Slight 
mistakes  are  immaterial.^  They  are  mere  irregularities 
and  not  fatal.'  It  was  held,  however,  in  an  early  case  in 
Pennsylvania,  that  the  name  of  the  corporation  must  be 
accurately  given.*  If  the  identity  of  the  corporation  is 
plain  in  spite  of  an  error,  there  is  no  ground  for  a  valid 
objection  to  a  verdict  or  sentence.^  Even  though  the  error 
consist  in  entitling  the  case,  as  though  brought  by  the  state 
instead  of  by  the  corporatiou,  exception  must  be  taken  in 
the  court  below  on  the  trial  of  the  case  or  the  error  will  be 
effectually  waived.^ 

§  173.  The  offense  must  be  distinctly  alleged. — It  is 
essential  to  the  validity  of  a  prosecution  that  the  complaint 
contain  allegations  of  every  fact  necessary  to  inform  the  ac- 
cused with  reasonable  certainty  of  the  act  for  which  he  is 
sought  to  be  punished.^  It  is  sufficient  if  he  is  informed 
to  a  reasonable  certainty.^  Neither  the  strictness  of  the  com- 
mon-law requirements  nor  the  technical  accuracy  of  indict- . 
ments  need  be  observed.^  Still,  a  complete  statement  of  the 
offense  must  be  made.^"  The  requirement  is  not  satisfisd  by 
a  simple  allegation  that  the  defendant  has  violated  a  cer- 
tain ordinance.     The  act  of  violation  must  be  described 

(1)  Alton  V.  Kirsch,  78  111.  1261. 

(2)  Hershoff  v.  Beverly,  45  N.  J.  288. 

(3)  State  V.  Graflfmuller,  26  Minn.  6. 

(4)  Mayor  v.  Nell,  3  Yeates,  475. 

(5)  Farrel  v.  London,  12  U.  C.  Q.  B.  343. 

(6)  State  V.  King,  37  la.  462. 

(7)  Memphis  v.  O'Connor,  53  Mo.  468. 

(8)  St.  Louis  V.  Frein,  9  Mo.  App.  590. 

(9)  Keeler  v.  Milledge,  24  N.  J.  145;  Memphis  v.  O'Connor,  53  Mo. 
468 ;  Commonwealth  v.  Rowe,  141  Mass.  79. 

(10)  People  V.  Justices,  12  Hun,  65. 


148  MUNICIPAL   POLICE    ORDINANCES.  [§  173. 

and  not  left  to  implication.^  Tt  is  best,  if  not  necessary, 
to  plead  the  acts  constituting  the  alleged  offense  at  least  as 
accurately  and  definitely  as  the  description  of  the  offense 
contained  in  the  ordinance.^  If  the  same  language  is  used 
the  complaint  will  hold  good.^  Under  an  ordinance 
against  the  maintenance  of  nuisances  in^  the  shape  of  ob- 
noxious and  injurious  trades,  it  is  not  enough  to  allege  that 
the  defendant  keeps  in  store  a  large  quantity  of  hides  and 
tallow  which  emit  a  disagreeable  odor.  The  complaint 
must  also  allege  that  the  odor  is  injurious  to  health  or  ob- 
noxious to  the  comfort  of  the  citizen,  or  other  facts  which 
would  make  it  amount  to  a  nuisance.*  So,  if  it  is  made 
unlawful  to  "  suffer  "  hogs  to  go  at  large,  the  complaint 
must  aver  that  the  defendant's  hogs  were  at  large  by  his 
sufferance.'^  Any  material  deviation  from  the  elements  of 
the  offense  as  defined  by  the  ordinance  is  fatal.  Thus,, 
under  an  ordinance  declaring  it  an  offense  for  any  one  to 
allow  his  animals  to  stop  and  feed  along  the  highway,  a 
complaint  is  defective  which  avers  that  the  defendant's^ 
animals  were  allowed  by  him  to  stop  to  feed.  The  animals 
must  have  not  only  stopped,  but  they  must  also  have  fed 
on  the  highway.  If  the  feeding  had  not  been  considered 
a  material  element  of  the  offense,  it  should  and  would 
have  been  omitted  from  the  provision  of  the  ordinance.^ 

There  must  be  a  positive  allegation  that  the  act  was 
committed.  A  complaint  is  bad  for  uncertainty  that  simply 
alleges  that  the  informer  has  "just  cause  to  suspect  and 
does  suspect  that  B.  is  guilty  of  a  certain  offense.^ 

It  is,  however,  no  ground  of  objection  to  a  complaint 
that  it  aver  more  than  is  necessary  to  constitute  the  offense. 
If  any  one  of  several  distinct  acts  that  are  alleged  is  suffi- 

(1)  Huntington  v.  Pease,  56  Ind.  305;  Huntington  v.  Cheesbro,  5T 
Ind.  74. 

(2)  Truesdale  v.  Moultrieville,  Rice  (S.  C),  158. 

(3)  St.  Louis  V.  Knox,  74  Mo.  79. 

(4)  Lippman  v.  South  Bend,  84  Ind.  276. 

(5)  Case  v.  Hall,  21  111.  632. 

(6)  Commonwealth  v.  Bean,  14  Gray,  52. 

(7)  Roberson  v.  Lambertville,  38  N.  J.  L.  69. 


§  174.]  PROCEDURE — PLEADING — EVIDENCE.  149 

cient  to  constitute  the  offense,  proof  of  any  one  will  sus- 
tain a  conviction.  The  remaining  allegations  are  sur- 
plusage.^ 

In  order  to  properly  advise  the  defendant  of  the  charge 
made  against  him,  not  only  must  the  act  be  particularly 
described,  but  the  complaint  must  allege  when,  where,  and 
how  it  was  committed.  A  simple  charge  that  he  has  com- 
mitted a  described  offense  is  indefinite.^  So,  a  charge  that 
the  defendant  "  knowingly  associated  with  thieves  previous 
to  August  21,  1871,"  is  bad  for  not  stating  when,  where, 
and  with  whom  he  associated.^  This  principle  is  most 
frequently  invoked  in  complaints  that  charge  offenses 
against  the  ordinances  regulating  the  traffic  in  intoxicating 
liquors.  If  the  offense  consists  in  keeping  a  saloon  open 
at  unlawful  hours,  or  in  allowing  persons  to  enter  at  un- 
lawful hours,  it  is  immaterial  who  entered,  or  who  utilized 
the  breach  of  'the  law ;  but  if  the  offense  lies  in  selling  to 
persons  in  the  habit  of  getting  intoxicated,  or  in  a  state  of 
intoxication,  or  to  minors,  the  complaint  must  state  either 
the  names  of  those  to  whom  the  liquor  was  sold,  or  that 
their  names  are  unknown  to  the  informer.* 

The  allegations  of  the  complaint  must  bring  the  offender 
clearly  within  the  class  of  persons  against  whom  an  or- 
dinance may  be  directed.  If  it  is  unlawful  for  any  person 
in  control  of  a  saloon  or  house  to  do  some  act,  the  defend- 
ant prosecuted  under  that  ordinance  must  be  alleged  to  be 
in  control  of  the  saloon  or  house  in  question.^ 

§  174.  Reference  must  be  made  to  the  ordinance 
violated. — Under  the  common-law  procedure,  the  only 
remedy  for  violation  of  municipal  ordinances  was  an  action 

(1)  Commonwealtli  v.  Curtis,  9  Allen,  266;  Stevens  v.  Common- 
wealth, 6  Met.  242. 

(2)  Memphis  v.  O'Connor,  53  Mo.  468. 

(3)  St.  Louis  V.  Fitz,  53  Mo.  582. 

(4)  Hill  V.  Dalton,  72  Ga.  314;  Sparks  v.  Stokes,  40  N.  J.  487;  Flan- 
agan V.  Plainfield,  44  ^^.  J.  L.  118;  Greeley  v.  Passaic,  42  N.  J.  L.  87; 
Roberson  v.  Lambertville,  38  N.  J.  L.  69 

(5)  Napman  v.  People,  19  Mich.  352. 


loO  MUNICIPAL    POLICE    ORDINANCES.  [§  174. 

in  debt  or  assumpsit,  and  it  was  deemed  necessary  to  plead 
every  fact  that  went  to  constitute  the  right  to  recover. 
The  ordinance  itself  was  considered  a  fact,  and  had  to  be 
pleaded.  Following  this  rule  many  cases  hold  that  the 
ordinance,  or  at  least  that  portion  which  is  directly  violated, 
should  be  embodied  in  the  complaint.^ 

Considered  purely  as  a  declaration  in  debt,  the  complaint 
would  needs  contain  allegations  as  to  the  time  of  passage 
of  the  ordinance,  by  whom  and  by  what  authority  enacted, 
the  ordinance  itself,  and  the  acts  constituting  the  breach.* 

The  strictness  of  the  rule  is  sometimes  modified  by  hold- 
ing that  only  the  substance  of  the  ordinance  need  be 
pleaded.^ 

The  existence  of  municipal  ordinances  must  be  noticed 
by  all  who  come  within  the  corporate  juristliction  in  the 
same  degree  that  state  laws  must  be  noticed  by  those 
within  the  limits  of  a  state.  State  statutes  are  not  spe- 
cially pleaded  in  criminal  prosecutions,  and  it  is  not  plain 
why  the  same  principle  might  not  be  as  well  extended  to 
prosecutions  under  ordinances.  The  fact  that  it  is  not 
commonly  extended  to  them,  would  seem  to  indicate  very 
strongly  that  prosecutions  under  ordinances  are  still  con- 
sidered as  civil  rather  than  as  criminal  actions.  Decisions 
have  been  rendered  in  a  few  states,  which  deny  wholly  or 
qualifiedly  the  necessity  of  pleading  the  existence  of  an 
ordinance.  Thus  it  is  held  iu  Minnesota  not  to  be  neces- 
sary to  refer  to  the  ordinance.*    In  "Wisconsin  it  has  been 

(1)  Railroad  v.  Klauber,  9  111.  App.  613;  Railroad  v.  Godfrey,  71  111. 
500;  Van  Dyke  v.  Cincinnati,  1  Dis.  (Ohio),  533;  Green  v.  Indianapolis,. 
25  Ind.  490;  Pomeroy  v.  Lappens,  9  Greg.  363;  Barker  v.  New  York,. 
17  Wend.  199;  People  v.  Xew  York,  7  How.  Pr.  81 ;  Greensborough  v. 
Shields,  78  N.  Car.  417;  Hendersonville  v.  McMinn,  82  N.  Car.  532;. 
State  V.  Edens,  85  X.  Car.  522. 

(2)  Coates  v.  New  York,  7  Cow.  585. 

(3)  Clevenger  v.  Rushville,  90  Ind.  258;  Keeler  v.  Milledge,  24  N.  J. 
142;  Sanesville  r.  Railroad,  7  Wis.  484;  People  v.  Justices,  12  Hun, 
65;  Case  v.  Mobile,  30  Ala.  538;  Charleston  v.  Chur.  2 'Bailey,  164; 
Council  V.  Seeba,  4  Strobh.  319 ;  Kip  v.  Patterson,  26  N.  J.  L.  298. 

(4)  State  V.  Richards,  21  Minn.  47:  Rochester  v.  Upman,  19  Minn. 
108.  But  contra,  Winona  v.  Burke,  23  Minn.  254.  See  Meyer  v.  Bridge- 
town^  37  N.  J.  160. 


§  174.]  PROCEDURE — PLEADING — EVIDENCE.  151 

held  that  a  prayer  that  the  defendant  "  may  be  arrested  and 
held  to  answer,"  could  be  construed  to  refer  to  the  ordinance 
as  though  imported  in  the  complaint.^  A  conclusion 
against  the  peace  of  the  city  has  been  held  to  have  the 
same  effect.^  But  these  decisions  are  surely  not  consonant 
with  the  current  of  authority.  On  the  one  hand  munici- 
pal ordinances  are  looked  upon  by  the  American  courts  as 
quasi-public  laws ;  as  such,  all  who  come  within  their 
operation  are  obliged  to  take  notice  of  them,  and  it  would 
therefore  seem  useless  to  plead  them  specially  when  sought 
to  be  directly  enforced.  On  the  othei  hand,  actions  to  en- 
force ordinance  penalties  still  have  many  features  in  com- 
mon with  the  civil  action  in  debt;  they  are  generally  con- 
sidered as  but  semi-criminal,  and  some  regard  must  still 
be  had  to  the'  requirements  of  the  civil  rules  of  pleading. 
As  these  conflicting  considerations  can  not  be  wholly 
reconciled,  the  best  rule  seems  to  be  that  the  complaint 
should  refer  to  the  ordinance  in  some  manner  that  will  en- 
able it  to  be  easily  identified  ;  that  it  ought  not  to  entirely 
ignore  its  existence,  but  also  that  it  need  not  plead  the 
ordinance  or  even  its  substance.  Although  the  weight  of 
authority  is  nearly  evenly  divided  among  these  varying 
views,  there  is  ample  authority  favorable  to  the  doctrine 
that  the  ordinance  need  only  be  referred  to,  to  justify  its 
adoption  by  any  court  that  is  not  yet  committed  to  another 
view.^  If  only  one  ordinance  was  passed  on  a  certain  day, 
it  might  be  sufficient  to  refer  to  the  ordinance  as  passed 
on  that  day.  Where  the  ordinances  are  numbered,  a  refer- 
ence to  the  number  is  sufficient.  And  in  general  a  refer- 
ence to  the  title  of  the  ordinance,  or  some  other  feature  by 
which  it  is  commonly  known,  and  which  will  enable  the 
defendant  to  easily  identify  it  and  single  it  out  from  all 

(1)  Oshkosh  V.  Schwartz,  55  Wis.  483. 

(2)  Information  v.  Oliver,  21  S.  Car.  318. 

(3)  West  V.  Columbus,  20  Kan.  633;  State  v.  Merritt,  83  N.  Car.  677; 
Watts  V.  Scott,  2  Dev.  (N.  Car.)  1 ;  Goldthwaite  v.  Montgomery,  50  Ala. 
486;  Huntington  v.  Pease,  56  Ind.  305 ;  Goshen  v.  Kern,  63  Ind.  468; 
Auburn  u.  Eldridge,  77  Ind.  126;  Whitson  v.  Franklin,  34  Ind.  392; 
State  V.  Cainan,  94  N.  Car.  880 ;  Faribault  v.  Wilson,  34  Minn.  254. 


152  MUNICIPAL    POLICE    ORDESTANCES.  [§  176. 

other  ordinances,  will   satisfy  the  requirements  of  good 
pleading. 

If  the  ordinance  has  been  properly  referred  to,  or  its 
substance  pleaded,  where  that  is  deemed  essential,  it  is  not 
necessary  to  allege  power  in  the  corporation  to  enact  the 
ordinance,^  nor  to  plead  or  refer  to  the  charter  or  general 
law  by  which  that  power  was  conferred.^  It  need  not  be  al- 
leged that  all  proper  formalities  were  observed  in  its  pas- 
sage,^ nor  that  the  corporation  has  legal  capacity  to  sue.* 

§  175.  Exceptions  need  not  be  negatived. — Where 
certain  acts  or  classes  of  acts  are  expressly  excepted  from 
the  operation  of  an  ordinance,  it  is  unnecessary  and  unad- 
visable  to  negative  the  exception.  "If  the  act  complained 
of  comes  within  the  exception,  and  is  therefore  lawful,  it 
is  a  good  defense  to  the  action,  and  should  be  left  to  the 
defendant  to  prove.* 

§  176.  The  conclusion. — In  those  states  where  actions 
are  properly  brought  in  the  name  of  the  corporation,  it  is 
undoubtedly  sufficient  if  the  information  or  complaint  con- 
cludes with  such  an  expression  as  "  contrary  to  the  form 
of  the  ordinance  in  such  case  provided."® 

In  Massachusetts,  where  ordinances  are  considered  as  a 
part  of  the  general  scheme  of  state  legislation,  and  where 
actions  are  brought  in  the  name  of  the  commonwealth,  it 
is  considered  essential  that  the  ordinance  conclude  either 
"  contrary  to  the  form  of  the  statute  in  such  case  pro- 
vided," or  "  contrary  to  the  form  of  the  ordinance  in  such 
case  made  and  provided,  and  to  the  peace  and  dignity  of 

(1)  Janesville  V.  Railroad,  7  Wis.  484. 

(2)  Winooski  v.  Gokey,  49  Vt.  282.  Contra,  Washington  v.  Frank,  1 
Jones,  436. 

(3)  Hardenbrook  v.  Ligonier,  95  Ind.  70. 

(4)  Janesville  v.  Railroad,  7  Wis.  484. 

(5)  McGear  v.  Woodruff,  33  N.  J.  L.  213:  Roberson  v.  Lambertville, 
38  N.  J.  L.  69;  Lynch  v.  People,  16  Mich.  472;  Farwell  v.  Smith,  16  N. 
J.  L.  133;  Shaw  v.  Poynter,  2  Ad.  &  El.  312;  Martinsville  v.  Frieze,  33 
Ind.- 507. 

(6)  Winooski  v.  Gokey,  49  Vt.  282. 


^  178.]  PROCEDURE — PLEADING — EVIDENCE.  153 

the  state."  ^  A  very  convenient  and  ample  form  of  con- 
clusion includes  a  distinct  reference  to  the  ordinance  vio- 
lated, such  as  "  contrary  to  the  ordinance  entitled  '  an  or- 
dinance against  the  obstruction  of  the  streets/  passed  Oc- 
tober 10, 1882,  and  to  the  peace  and  dignity  of  the  state." 

§  177.  Signature  to  complaint. — The  person  who 
makes  the  complaint  or  files  the  information  upon  which 
the  complaint  is  based,  must  sign  his  declaration  and  make 
affidavit  to  its  truth.  Here,  as  in  regard  to  other  formal- 
ities, the  making  of  the  affidavit  and  the  signature  as  a 
means  of  identifying  the  informer  are  the  essence  of  the 
formality,  and  slight  errors,  not  going  to  material  features, 
are  mere  irregularities.^ 

§  178.  Arrest  of  offender. — In  actions  instituted  against 
a  person  who  has  allowed  his  property  to  violate  the  local 
ordinances,  the  remedy  is  more  directly  against  the  prop- 
erty, and  the  notice  to  be  given  him  of  the  pendency  of 
the  proceeding  has  already  been  considered.^  But  where 
the  remedy  is  wholly  against  the  person  of  the  offender, 
the  filing  of  a  proper  affidavit  or  complaint  is  followed 
by  the  issuing  of  a  warrant  to  some  police  officer,  com- 
manding him  to  arrest  the  defendant,  and  to  bring  him 
before  the  court.  At  common  law,  local  magistrates  had 
no  power  to  order  the  arrest  of  an  offender  and  to  take  a 
bail  bond  for  his  due  appearance,  but,  as  the  form  of  action 
has  now  been  changed,  and  other  punishments  than  fines 
imposed,  the  common-law  rule  has  ceased  to  be  applicable.'* 
Some  kind  of  process  must  issue,  unless  expressly  declared 
unnecessary  by  statute.^  Lack  of  process  may  be  waived 
by  the  voluntary  appearance  of   the  defendant,  but  such 

(1)  Commonwealth  v.  Gay,  5  Pick.  44;  Commonwealth  v.  Worcester, 
3  Pick.  462. 

(2)  Cherokee  v.  Fox,  34  Kan.  16. 

(3)  Ante,  §  162. 

(4)  Canthorn  v.  State,  43  Ark.  131. 

(5)  People  V.  Miller,  38  Hun,  82 ;  Alexander  v.  Bethlehem,  27  N.  J. 
L.  377. 


15-4  MUNICIPAL    POLICE   ORDINANCES.  [§  179. 

appearance  to  be  an  eftectual  waiver  must  be  made  witb  a 
knowledge  of  the  actual  pendency  of  a  charge  or  action. 
Thus,  when  a  person  came  before  a  magistrate  informally, 
and  questions  were  put  to  him  which  induced  the  court  to 
believe  him  guilty  of  the  violations  charged,  and  a  fine 
was  thereupon  imposed,  but  the  defendant  did  not  know, 
when  the  questions  were  being  asked  him,  that  an  actual 
complaint  had  been  made  before  that  magistrate,  his  ap- 
pearance was  held  not  to  be  an  effectual  waiver  of  process, 
and  the  judgment  was  held  void.^ 

§  179.  What  the  warrant  should  contain. — The  war- 
rant issued  should  contain  facts  sufficient  to  inform  the 
person  arrested  of  what  he  stands  charged.  It  generally 
gives  the  title  of  the  action,  the  name  of  the  court  in 
which  it  is  brought,  and  brief  reference  to  the  nature  of 
the  accusation,  besides  the  formal  command  to  the  officer 
to  take  the  person  named  therein  into  custody,  and  to 
bring  him  before  the  court.  The  prosecution  actually  con- 
ducted can  not  deviate  materially  from  the  facts  contained 
in  the  summons  or  warrant,  else  a  conviction  would  be 
voidable ;  that  is,  a  person  who  is  summoned  to  answer 
for  the  violation  of  one  ordinance  can  not  be  punished  in 
that  proceeding  for  a  breach  of  a  different  ordinance.-  No 
man  can  be  punished  for  that  to  which  he  has  not  been 
called  to  answer.  The  tribunal  must  likewise  be  accurately 
described.  Thus,  if  a  magistrate,  who  has  jurisdiction 
over  a  whole  township,  the  municipality  included,  in  civil 
cases,  but  only  over  the  municipality  in  cases  arising  under 
ordinances,  should  summon  a  defendant  to  appear  in  his 
court  "  in  the  township  of  B."  instead  of  "  in  the  city  of 
B.,"  the  summons  is  fatally  defective.' 

The  person  to  be  summoned  or  arrested  should  be  as 
definitely  named  in  the  writ  as  is  possible.     If  his  Chris- 

(1)  Merkee  v.  Rochester,  13  Hun,  157. 

(2)  Mayor  v.  Arnold,  30  Ga.  517;  Lesterjelle  v.  Mayor,  30  Ga.  936. 

(3)  Hershoflf  v.  Beverly,  43  N.  J.  139. 


§  180.]       PROCEDURE — PLEADING — EVIDENCE.  155 

tian  name  is  unknown,  that  fact  should  be  stated  ;  if  omit- 
ted without  any  such  explanation,  the  arrest  will  be  void.^ 

§  180.  Arrests  made  without  a  warrant. — In  order  to 
secure  the  efficiency  of  the  remedy  against  breaches  of 
ordinances,  the  local  police  officers  must  be  allowed  to  ar- 
rest for  violations  committed  in  their  presence  without 
having  first  secured  a  warrant.^  For  the  purpose  of  legal- 
izing arrests,  municipal  ordinances  must  be  considered  as 
equal  to  the  criminal  laws  of  the  state.  It  has,  however, 
been  held  that  the  act,  though  committed  in  the  presence 
of  the  officer,  must  be  one  which  amounts  to  a  breach  of  the 
peace.^  A  warrant  is  certainly  necessary  if  the  offense 
was  not  committed  in  the  presence  of  the  officer.*  Greater 
freedom  in  the  making  of  arrests  can  not  be  conferred  by 
ordinance  that  would  be  lawful  at  common  law.®  It  has 
been  held  in  Georgia  that  power  tc  pass  all  ordinances 
necessary  and  proper  for  the  good  government  of  the  town 
and  for  the  subjection  of  all  persons  whatever  authorizes 
an  ordinance  which  permits  arrests  on  view  and  without  a 
warrant.®  But  it  is  apprehended  that  such  power  and 
ordinance  confer  no  additional  or  novel  powers  on  the  local 
police.  Still,  under  the  charter  of  Newark,  New  Jersey, 
power  to  arrest  on  view  alone  must  be  expressly  conferred 
upon  the  officer.^ 

An  arrest  for  an  offense  committed  in  the  officer's  pres- 
ence may  be  made  on  any  day,  but  an  arrest  or  warrant 
can  not  lawfully  be  made  on  Sunday.^ 

The  simple  service  of  a  warrant  to  arrest  without  act- 
ually taking  the  person  into  custody  is  not  an  arrest,  and 

(1)  Prell  V.  McDonald,  7  Kan.  426. 

(2)  White  V.  Kent,  11  0.  S.  550;  Bryan  v.  Bates,  15  111.  87;  Main  v 
McCarty,  15  III.  441 ;  State  v.  LuflFerty,  5  Harr.  491, 

(3)  Hennessy  v.  Connolly,  13  Hun   173. 

(4)  Knoxville  v.  Vickers,  3  Coldw.  205  ;  State  v.  Cantieny,  34  Minn.  1. 

(5)  Qninn  v.  Heisel,  40  Mich.  576. 

(6)  Johnson  v.  Americus,  46  Ga.  80. 

(7)  Newark  v.  Murphy,  40  N.  J.  145. 

(8)  Wood  V.  Brooklyn,  14  Birb.  425. 


156  MUNICIPAL   POLICE   ORDINANCES.  [§   181. 

such  a  proceeding  is  considered  to  be  such  duress  as  would 
vitiate  a  confession  of  judgment  or  plea  of  guilty.* 

An  arrest,  to  be  lawful,  must  be  made  as  a  preliminary 
step  to  an  actual  bo7ia  fide  complaint  and  action.  An  ar- 
rest is  for  that  reason  unlawful,  if  made  in  pursuance  of 
an  ordinance  that  provides  that  any  person  who  shall  re- 
fuse to  obey  the  orders  of  the  officers  present  at  a  fire 
"  may  be  arrested  and  detained  in  custody  until  the  fire  is  ex- 
tinguished.'' The  object  of  such  an  arrest  is  not  to  subject 
the  ofiender  to  any  legal  action,  and  no  process  of  law  is 
contemplated.  If  such  an  arrest  were  to  be  followed  by  a 
prosecution  under  an  existing  ordinance  prohibiting  the 
obstruction  of  the  fire  department,  or  the  liiie,  it  would  be 
lawful.^ 

§  181.  Trial  by  jury. — In  all  prosecutions  which  may 
result  in  the  imprisonment  of  the  offender  as  a  part  of  the 
penalty  for  his  offense,  the  right  of  trial  by  jury  must  not 
be  denied,  but  in  prosecutions  for  petty  offenses  against 
ordinances  passed  in  the  exercise  of  police  powers,  and  in 
which  a  pecuniary  penalty  alone  can  be  inflicted,  such  a 
right  can  not  be  demanded.^  And  it  does  not  matter  that 
provision  is  made  for  enforcing  the  payment  of  the  fine  by 
imprisonment.'*  Nor  can  a  jury  trial  be  demanded  in  pro- 
ceedings to  determine  and  abate  nuisances.' 

In  cases  where  a  jury  trial  can  be  insisted  upon,  or  in 
which  it  is  allowed,  either  party  may  exercise  the  same 
right  of  challenge  that  is  allowed  by  statute  or  the  com- 
mon law  in  other  actions.^  If  the  action  is  considered  civil 
in  its  nature,  or  only  quasi-criminal,  the  number  of  chal- 
lenges would  accord  to  the  practice  in  civil  causes,  other- 
wise to  the  practice  in  criminal  cases  under  the  state  laws 

(1)  Baldwin  v.  Murphy.  82  111.  487. 

(2)  Judson  V.  Reardon,  16  Minn.  431. 

(3)  Ex  parte  Kiburg,  10  Mo.  App.  442;  Hill  v.  Dal  ton,  72  Ga.  314; 
tnwood  V.  State,  42  0.  S.  186. 

(4)  Inwood  V.  State,  42  0.  S.  186. 

(5)  Hart  v.  Albany,  9  Wend.  571., 

(6)  Charleston  v.  Klpint>a'>k,  2  Spears,  418. 


§   184.]  PROCEDURE — PLEADING —EVIDENCE.  157 

In  West  Virginia  a  jury  trial  can  be  had  on  appeal,  but 
can  not  be  insisted  on  in  the  magistrate's  court.* 

§  1S2.  Arraignment  and  plea. — It  is  certainly  just  to 
the  offender  and  not  injurious  to  the  speediness  of  the 
remedy,  that  he  should  be  formally  arraigned  and  allowed 
to  plead.^  If  he  is  not  allowed  to  do  so,  costs  of  the  ac- 
tion incurred  after  the  point  where  he  should  have  had 
this  privilege,  can  not  be  charged  against  him,  as  they 
might  have  been  saved  by  a  plea  of  guilty.  Whether  the 
action  be  civil  or  criminal  an  opportunity  to  plead  to  the 
complaint  should  be  given  to  the  defendant.  Under  the 
liberal  procedure  followed  in  Missouri,  it  seems  that  these 
formalities  are  only  considered  essential  in  cases  where 
indictments  under  the  state  law  would  be  for  the  same 
act.^ 

§  183.  Evidence. — The  methods  adopted  to  prove  the 
issues  made  in  cases  based  on  violations  of  municipal  ordi- 
nances and  the  rules  of  evidence  are  subtantially  the  same 
as  in  cases  in  the  state  courts.  The  actual  practice  presents 
a  strange  mixture  of  civil  and  criminal  rules.  It  is  always 
safer  to  observe  the  established  rules  of  evidence  in  crimi- 
nal cases,  though  not  always  necessary  to  a  valid  judgment 
or  conviction.  The  ordinary  rules  of  evidence  may  be  to 
some  extent  illustrated  and  even  supplemented  by  minor 
rules  dependent  upon  the  peculiar  nature  of  this  class  of 
actions,  and  upon  the  variation  in  the  nature  of  the  offense. 
It  is,  however,  impracticable  to  formulate  any  well  defined 
modification  of  the  law  of  evidence,  that  can  be  considered 
as  belonging  peculiarly  to  practice  in  ordinance  cases. 

§  184.  Judicial  notice. — In  those  states  which  adhere 
to  the  rule  of  common  law  that  the  complaint  or  petition 
must  plead  the  ordinance  on  which  the  prosecution  is  based 

(1)  Beasleyu.  Beckley,  28  W.  Va.  81;  Moundsville  v.  Fountain,  27: 
W.  Va.   183;  Jelly  v.  Dills,  27  W.  Va.  267. 

(2)  Mayor  v.  Nell,  .3  Yeates,  475. 

(3)  Lexington  v.  Curtiss,  69  Mo.  626;  St.  Louis  v.  Knox,  74  Mo.  79.. 


158  MUNICIPAL    POLICE    ORDINANCES.  [§  184. 

as  a  fact,  it  is  held  consistently  with  that  view  that  the 
local  court  will  not  take  judical  notice  of  the  municipal 
ordinances.  The  same  view  is  entertained  in  many  states 
where  there  is  no  longer  any  reason  for  the  rule.  At  com- 
mon law  ordinances,  or  by-laws,  were  not  part  of  the  public 
laws,  having  been  originally  enacted  solely  by  the  guilds, 
which  were  private  corporations.  The  distinction  seems, 
however,  either  to  have  been  wholly  overlooked,  or  other 
considerations  have  outweighed  it  in  the  minds  of  the 
courts.  Cases  are  numerous  which  deny  the  right  of  the 
local  courts  to  take  iiidicial  notice  of  the  local  ordinances.^ 
In  cases  where  the  state  statutes  provide  that  ordinances 
may  be  proved  in  a  specified  manner,  it  would  seem  to  be 
the  legislative  intent  thiit  they  shall  not  be  judicially 
noticed.  Under  the  circumstances,  it  is  certainly  advisable 
to  either  plead  or  prove  in  evidence  the  ordinance  relied 
on.  In  those  states  where  no  indication  of  legislative 
intent  is  conveyed  by  statute,  and  especially  in  those  where 
prosecutions  under  ordinances  are  considered  criminal 
actions,  it  is  difficult  to  understand  why  ordinances  need 
to  be  proved.  Of  course  it  would  be  necessary  whenever 
their  validity  is  attacked  on  the  ground  of  an  alleged 
informality  in  their  passage.  It  is  well  established  that  the 
residents  within  a  municipality  must  take  notice  of  the 
ordinances,  and  it  is  frequently  stated  that  ordinances  have 
the  force  and  effect  of  laws  within  the  limits  of  the  corpo- 
ration* Why,  then,  are  they  not  such  public  laws  as  to  the 
locality  which  they  govern,  and  matters  of  such  public 
knowledge  as  to  be  brought  within  the  judicial  notice  of 
the  tribunals  charged  with  their  enforcement?  The  local 
court  takes  judicial  notice  of  corporate  existence,  and  the 
law  by  which  it  exists;  in  fact,  corporate  existence  can  not 
be  questioned  in  the  prosecution  for  the  violation  of  an 

(1)  Winona  v.  Burke,  23  Minn.  254;  Cox  v.  St.  Louis,  11  Mo.  432; 
Mooney  v.  Kennett,  19  Mo.  551  ;  Garvin  v.  Wells,  8  la.  286;  Goodrich 
V.  Brown,  30  la.  291 ;  Case  v.  Mobile,  30  Ala.  538  ;  Porter  v.  Waring,  69 
N.  Y.  250;  Barker  v.  Mayor,  17  Wend.  199 ;  People  v.  Mayor.  7  How. 
Pr.  81. 


§  185.]       PROCEDURE — PLEADING EVIDENCE.         159 

ordinance.^  And  as  to  other  matters  of  general  public 
knowledge,  local  courts  will  take  notice  of  materially  the 
same  things  as  the  state  courts.  Surely  if  analogy  is  to  be 
drawn  from  criminal  prosecutions,  it  ought  not  to  be  nec- 
essary to  prove  the  law  violated.  There  can  be  no  valid 
criminal  proceeding,  unless  some  public  law  has  been  vio- 
lated, and  the  prosecution  ought  not  to  be  obliged  to  prove 
a  law  of  which  all  people  are  presumed  to  have  notice. 
The  municipality  ought  not  to  do  more  than  produce  such 
evidence  of  the  ordinance,  or  appertaining  to  the  steps 
taken  in  its  enactment,  as  is  necessary  to  rebut  any  claim 
of  invalidity  that  has  been  frima facie  proved.  And  such 
is  the  position  favored  by  the  recent  text  writers  basing 
their  opinions  upon  a  number  of  well  considered  cases.^ 

§  185.  How  ordinances  are  proved. — When  it  is  deemed 
necessary  to  establish  the  existence  of  an  ordinance  by  evi- 
dence, or  when  the  validity  of  the  ordinance  is  attacked  for 
informal  enactment,  questions  arise  as  to  how  it  should  be 
done.  Provision  is  ordinarily  made  for  a  simple  method 
of  proving  ordinances,  either  by  introducing  a  certified 
copy  or  the  printed  volume  in  which  they  are  all  collected. 
When  the  printed  volume  is  made  evidence,  ordinances 
are  in  one  sense  put  upon  the  same  footing  with  the  state 
statutes,^  and  all  other  proof  is  unnecessary.*  Very  often 
special  rules  of  evidence  are  provided  by  statute  or  by  the 
municipality  under  express  charter  authority  for  the  proof 
of  ordinances,  but  if  no  special  rule  exists  the  common 
rules  of  evidence  apply .^ 

Even  in  the  absence  of  statutory  provision,  the  printed 

(1)  Elk  Point  V.  Vaughn,  1  Dak.  108;  Winooski,  v.  Gokey,  49  Vt. 
282;  Smith  v.  Adrian,  1  Mich.  495;  People  v.  Potter,  35  Cal.  110; 
Beasley  v.  Beckley,  28  W.  Va.  81.  Of  its  powers,  Dwyer  v.  Brenham,  65 
Tex.  526. 

(2)  Dill.  Mun.  Corp.,  §  413,  and  note;  Wharton  on  Evidence,  §  293; 
Dubuque  v.  Lieber,  11  la.  407;  Conboy  v.  Iowa  City,  2  la.  90;  Inform- 
ation V.  Oliver,  21  S.  Car.  318;   Wheeling  v.  Black,  25  W.  Va.  266. 

(3)  Napman  v.  People,  19  Mich.  352. 

(4)  St.  Charles  v.  O'Mailey,  18  111.  407. 

(5)  Railroad  Co.  v.  Engle,  76  111.  317. 


160  MUNICIPAL    POLICE    ORDINANCES.  [§  185» 

volume  containing  the  citj  ordinances  is  'prima  facie  evi^ 
dence  and  will  be  considered  sutlicient  proof  of  their  exist- 
ence until  controverted.!  A  book  purporting  to  contain 
all  the  ordinances,  and  shown  to  be  in  the  custody  of  the- 
corporation  clerk,  will  be  received  without  further  attesta- 
tion.2  The  testimony  of  a  policeman  who  is  familiar  witk 
the  book  and  with  the  signature  of  the  mayor  affixed 
thereto  will  render  the  book  admissible.^ 

Where  there  is  no  book  in  which  ordinances  are  regu- 
larly published  or  recorded  together,  a  prima  facie  case 
may  be  made  by  offering  in  evidence  a  copy  of  the  ordi- 
nance sued  upon  attested  by  some  corporate  officer,  usually 
the  clerk.  A  copy  duly,  that  is  plainly,  certified  by  the 
clerk,  is  proper  evidence  of  the  existence  of  the  ordinance.* 
The  ordinance  must  be  certified  to,  if  it  is  not  in  some  form 
which  is  upon  its  face  sufficient  to  establish  its  genuineness 
and  accuracy.'  A  copy  of  the  ordinance  shown  to  have 
come  from  the  clerk,  and  bearing  the  indorsement,  "A  true 
copy,  A.  B.,  Clerk,"  is  authentic.^  Where  the  witness  tes- 
tified that  he  was  the  clerk  of  the  corporation  when  the 
ordinance  in  question  was  passed  ;  that  he  had  compared 
the  copy  offered  in  evidence  with  the  corporate  records,  and 
that  it  was  correct — that  evidence  was  considered  sufficient 
to  admit  the  paper  as  a  sworn  copyJ 

(1)  Ban*  v.  Auburn,  81  111.  3fil;  Independence  v.  Trouvalle,  15  Kan. 
70;  Prell  v.  McDonald,  7  Kan.  446;  State  v.  King,  37  la.  462;  Lindsley 
V.  Chicago,  115  111.  120. 

(2)  Tipton  V.  Norman,  72  Mo.  380. 

(3)  Ottumwa  v.  Schaub,  52  la.  515. 

(4)  Pendergast  v.  Peru,  20  111.  1 ;  Commonwealth  v.  Chase,  6  Cush. 
248;  People  v.  Buchanan,  1  Idaho,  681 ;  Lindsley  v.  Chicago,  115  III.  120. 

(5)  Pugh  V.  Little  Rock.  35  Ark.  75. 

(6)  Kinghorn  v.  Kingston,  25  U;  C.  Q.  B.  130. 

(7)  Railroad  Co.  v.  Shires,  108  111.  617.  If  the  municipal  charter 
provides  that,  "an  ordinance  shall  be  suflSciently  proved  by  producing 
a  copy  certified  by  the  clerk,  a  printed  copy  taken  from  a  newspaper," 
or  a  printed  pamphlet,  provided  the  same  appears  to  have  been  issued 
by  the  authority  of  the  corporation,  a  copy  cut  from  a  newspaper,  and 
entitled,  "published  by  authority,"  and  bearing,  in  printing,  the  sig- 
nature of  the  president  and  clerk,  is  sufficient  proof.  Block  v.  Jack- 
sonville, 36  111.  301. 


§  186.]  PROCEDURE — PLEADING — EVIDENCE.  161 

Proof  of  tbe  existence  aud  identity  of  the  ordinance  of- 
fered should  by  rights  be  all  that  is  required  of  the  prose- 
cution in  any  case,  until  some  showing  has  been  made  that 
there  was  irregularity  in  the  enactment  of  the  ordi- 
nance, in  which  case  it  becomes  necessary  to  prove  that  it 
was  properly  enacted  in  order  to  sustain  a  conviction  or 
judgment.  If  no  such  question  is  raised  the  presumption 
that  the  ordinance  was  properly  passed  becomes  conclusive.* 

If  it  is  deemed  necessary  to  prove  compliance  wnth  all 
formalties,  none  must  be  omitted  which  are  prescribed  by 
the  charter  or  statute  authorizing  the  municipality  to  enact 
ordinances.^  The  steps  taken  before  the  council  must  be 
proven.^  "Where  publication  is  necessary,  that  must  be 
shown,  as  must  also  formal  adoption  by  the  body  of  the 
electors  when  their  approval  is  required.*  Although  au 
early  case  holds  that  no  evidence  of  promulgation  need  be 
given.* 

§  186.  The  record  of  council  proceedings  as  evidence. 
Some'  provision  is  generally  made  for  keeping  a  record 
of  the  acts  and  proeeedings  of  every  local  legislative  body. 
A  record  so  kept  aud  duly  identified  is  the  only  proper 
method  of  proving  those  acts,  unless  express  provision  is 
made  for  some  other  method.^  Where  there  is  a  record 
book,  as  a  rule,  parol  or  extrinsic  evidence  is  inadmissible 
for  the  purpose  of  proving  ordinances.  It  is  the  best  evi- 
dence.'' The  record  is  conclusive  as  to  all  its  recitals,  and 
if  it  is  silent  as  to  the  taking  of  some  necessary  step,  com- 
pliance v^ith  the  requirement  can  not  be  shown  by  supple- 

(1)  Flora  V.  Lee,  5  111.  App.  629. 

(2)  As  !o  what  are  deemed  essential,  see  ante,  §§  56,  57,  58. 

(3)  Elizabethtown  v.  Lefler,  23  111.  90;  Willard  v.   Killingworth,  8 
Conn.  247. 

(4)  Schott  V.  People,  89  111.  195. 

(5)  Charleston  v.  Chur,  2  Bailey,  164. 

(6)  Parsons  v.  Trustees,  44  Ga.  529;  Baker  v.  Scofield,  58  Ga.  182. 

(7)  Stewart  v.  Clinton,  79  Mo.  604. 

11 


162  MUNICIPAL    POLICE    ORDINANCES.  [§  187. 

meatary  extrinsic  evidence.^  Thus,  the  city  clerk's  attesta- 
tion on  the  record  of  the  date  of  the  mayor's  approval  can 
not  be  contradicted  by  parol  evidence.^  The  mayor's  ap- 
proval can  not  be  proved  extrinsically.^  It  has,  however, 
been  held  in  Missouri  that  if  the  signature  of  the  mayor  to 
the  ordinance  that  was  read  and  adopted  is  lacking  through 
an  omission  to  record  accurately,  it  may  be  shown  extrin- 
sically  that  he  did  in  fact  sign  it.*  The  local  court  of  Pitts- 
burgh once  held,  though  certainly  contrary  to  all  authority, 
that  the  provision  for  a  record  is  only  directory,  that  the 
passage  of  an  ordinance  could  be  proved  outside  of  the 
record  and  a  prosecution  thus  sustained.* 

§  187  Proof  of  publication. — Publication  of  the  ordi- 
nance is  the  onlv  formality,  compliance  with  which  may 
be  proved  outside  of  the  record.  The  rule  against  the 
admissibility  of  parol  evidence  is  relaxed  in  this  one  par- 
ticular. Ordinances  must  be  promulgated  before  they  can 
have  effect  and  parol  or  documentary  evidence  of  promul- 
gation is  admissible.®  If  the  publication  is  made  by  post- 
ing copies  in  public  places,  testimony  given  by  the  clerk  of 
the  corporation  that  the  ordinance  in  question  was  so  posted 
is  good  proof.^  "When  the  statute  provides  that  publica- 
tion may  be  made  in  that  manner,  if  no  newspaper  is  pub- 
lished in  the  village,  proof  must  be  offered  to  show  that  no 
paper  was  so  published  when  the  ordinance  was  promul- 
gated in  order  to  show  that  posting  was  lawful.^  It  is  suf- 
ficient to  show  that  the  statutory  provision  has  been  com- 
plied with.     No   other  evidence   of  publication   need   be 

(1)  Solomon  v.  Hughes,  24  Kan.  211;  Covington  v.  Ludlow,  1  Mete. 
(Ky.)  295;  Lexingto;i  v.  Headley,  5  Bush,  508;  Ball  v.  Fagg,  67  Mo. 
841;  St.  Louis  v.  Foster,  52  Mo.  513;  People  v.  Murray,  57  Mich.  396. 

(2)  Ball  V.  Fagg,  67  Mo.  481. 

(3)  Lexington  v.  Headley,  5  Bush,  508. 

(4)  Knight  v.  Railroad  Co.,  70  Mo.  231, 

(5)  Barton  v.  Pittsburgh,  4  Brewst.  373.  As  to  the  method  of  proving 
ordinances  in  New  York  city,  see  Logue  v.  Gillick,  1  E.  D.  Smith,  398. 

(6)  Eldora  v.  Burlingame,  62  la.  32. 

(7)  Teft  V.  Size,  10  111.  433;  Newton  v.  Aurora,  14  111.  364. 

(8)  Raker  V.  Maquon,  9  111.  App.  155. 


f  187.]  PROCEDURE — PLEADING — EVIDENCE.  163 

given  than  the  printed  ordinance  book  issued  by  the  local 
authorities,  if  printing  the  ordinance  in  a  book  be  recog- 
nized by  statute  as  a  lawful  mode  of  publication.^  If  an 
issue  is  made  as  to  proper  publication  in  a  newspaper,  and 
the  record  does  not  show  on  its  face  that  the  statutory 
requirement  was  fulfilled,  a  sworn  certificate  of  one  of  ithe 
publishers  of  the  newspaper  in  which  it  was  printed  will 
be  received.'  The  ordinance,  as  passed,  need  not  be  writ- 
ted  in  the  record  book.  A  copy  cut  from  the  newspaper 
and  pasted  in  is  sufficient.^  Similarly,  publication  may  be 
shown  by  attaching  the  publisher's  affidavit  to  the  manu- 
script copy  in  the  record  book,  instead  of  to  a  printed  copy 
cut  from  the  newspaper.*  Where  the  statutes  declare  that 
proof  of  publication  shall  be  unnecessary  unless  the  fact 
of  proper  publication  be  denied  under  written  oath,  an 
affidavit  to  that  effect  is  defective  which  merely  states  that 
"  affiant  is  informed  and  believes"  that  due  publication  was 
not  made.^ 

It  may  be  observed  that  Illinois  furnishes  most  of  the 
decisions  cited  in  this  section.  This  arises  from  the  exist- 
ence in  that  state  of  a  statute  permitting  publication  by 
posting  notices  in  certain  cases.  The  same  principles 
should,  however,  be  equally  applicable  in  any  other  state, 
because  publication  is  not  strictly  one  of  the  proceedings 
in  the  council.  The  record  book  derives  its  unimpeach- 
able authority  from  the  fact  that  it  is  supposed  to  be  a 
record  of  council  proceedings  made  at  the  time  and  by  the 
hand  of  an  officer  appointed  for  that  purpose,  and  while  it 
may  be  the  most  available  and  most  natural  place  for  pre- 
serving due  evidence  of  what  is  done  with  ordinances  after 
their  passage  by  the  council,  as  to  such  subsequent  pro- 
ceedings, the  reason  ceases  for  considering  that  evidence 
conclusive.     It  is  possible  to  produce   other   evidence  of 

(1)  Eaker  v.  Maquon,  9  111.  App.  155;  Bethalto  v.  Conley,  9  111.  App. 
339;  Faribault  V.  Wilson,  34  Minn.  254. 

(2)  Kettering  v.  Jacksonville,  50  111.  39. 

(3)  Ewbanks  v.  Ashley,  36  111.  177. 

(4)  Albia  v.  O'Harra,  64  la.  297. 

(5)  Green  v.  Indianapolis,  25  Ind.  490. 


164  MUNICIPAL   POLICE   ORDINANCES.  [§188. 

publication  equally  as  good  and  worthy  of  credit  as  the 
record  book,  which  is  in  that  particular,  at  best,  a  piece 
of  secondary  evidence. 

.  §  188.  Presumption  that  ordinances  are  reasonable.— 
It  is  not  necessary  on  the  trial  of  a  prosecution  under  a 
municipal  ordinance  to  adduce  proof  of  the  power  under 
which  it  was  passed.  If  the  ordinance  is  on  its  face  absurd 
or  unreasonable  the  court  may  and  ought  to  dismiss  the 
complaint/  and  the  court  can,  of  course,  take  judicial 
notice  of  the  power  if  conferred  by  statute,  and  determine- 
whether  the  ordinance  Ijas  any  authorization.''  Unless  the 
invalidity  of  an  ordinance  is  apparent  on  its  face,  there  is 
a  very  strong  presumption  that  it  is  valid.  Whenever  a 
question  is  raised  the  court  will  be  governed  by  the  follow^ 
ing  well  established  rules  : 

1.  If  the  ordinance  is  passed  in  pursuance  of  a  specific  and 
definite  power  and  includes  nothing  beyond  the  letter  of 
that  power,  the  presumption  in  favor  of  its  validity  becomes 
conclusive. 

2.  If  the  ordinance  is  based  on  a  general  power,  and  its^ 
provisions  are  more  detailed  and  minute  than  any  expres- 
sion of  power,  the  court  may  look  into  the  question  of  its 
reasonableness.  It  may  determine  whether  the  power  has- 
been  exercised  in  a  reasonable  manner,  and  if  such  de- 
termination depends  on  the  existence  or  non-existence  of 
certain  facts,  evidence  may  be  introduced  to  prove  or  dis- 
prove them.  The  burden  of  proof  is  upon  the  party  who 
denies  the  validity  of  the  ordinance.' 

The  court  will  not  investigate  the  reasonableness  of  an 
ordinance  which  has  been  enacted  in  pursuance  with 
a  definite  power.*    But  if  the  power  is  expressed  in  such 

(1)  State  Center  v.  Barenstein,  66  la.  249. 

(2)  Alton  V.  Hartford  Ins.  Co.,  72  111.  328. 

(3)  Van  Hook  v.  Selma,  70  Ala.  361 ;  Bolton  v.  Cleveland,  350.  S. 
319;  Reynolds  v.  Cincinnati,  27  0.  S.  312;  I^ouglasville  v.  Johns,  62  Ga. 
423 ;  State  v.  Gas  Co.,  37  Ohio,  45. 

(4)  Ex  parte  Chin  Yan,  60  Cal.  83;  Peoria  v.  Calhoun,  29  HI.  317  ^ 
St.  Paul  V.  Colter,  12  Minn.  41 ;  Grierson  v.  County,  9  U.  C.  Q.  B.  6i3  ; 
Dist.  of  Columbia  v.  Waggaman,  4  Mackey,  328. 


§  188.]  PROCEDURE— PLEADING — EVIDENCE.  165 

general  terms  that  an  ordinance  which  adopts  its  phraseol- 
ogy would  be  too  indefinite  to  be  enforceable,  .it  becomes 
necessary  for  the  local  legislature  to  determine  the  precise 
regulation  or  control  which  is  necessary  to  meet  the  needs 
of  the  public.  The  council  will  be  protected  by  the  courts 
in  this  exercise  of  its  discretion  to  every  reasonable  extent. 
The  main  test  is  the  ordinance  itself.  If  it  bears  no  ap- 
parent connection  with  any  grant  of  power  and  is  of  a  re- 
strictive nature  it  might  be  just  to  oblige  the  corporation  to 
show  how  its  enactment  could  be  justified.^  "  Within  the 
power  granted,  the  degree  of  necessity  or  propriety  of  its 
exercise  rests  exclusively  with  the  proper  corporate  author- 
ities; but  in  all  cases  the  power  exercised,  or  attempted  to 
be  exercised,  must  depend  upon  the  nature  and  extent  of 
the  power  granted,  and  w^henever  the  question  of  the  ex- 
istence or  limit  of  power  is  raised  it  becomes  the  plain  duty 
of  the  courts  to  see  that  the  corporate  authorities  do  not 
transcend  the  power  delegated  to  them."  ^  As  is  said  by 
Freeman,  J. :  "  I  have  always  thought  the  only  test  of  gen- 
eral legislative  action  should  be,  was  the  law  passed  in  pur- 
suance of  and  in  accordance  with  the  constitution,  and 
in  the  exercise  of  the  constitutional  powers  of  the  legis- 
lative body.  In  the  case  of  a  municipal  corporation,  the 
question  is,  whether  it  is  in  accord  with  our  constitution, 
state  and  federal,  and,  then,  within  the  powers  granted  in 
the  charter  of  the  corporation,  or  necessary,  as  an  implied 
power,  to  the  exercise  of  the  powers  expressly  granted. 
If  so,  the  propriety  and  mode  of  its  exercise  is  one  solely 
for  the  legislative  body  exercising  it.  That  is,  in  my  judg- 
ment, a  legislative,  not  a  judicial,  question,  when  the  power 
to  do  the  thing  is  conceded.  ...  It  seems  to  be  sus- 
tained by  the  current  of  authority  that  an  ordinance  may 
be  held  void  for  oppression  or  irregularity."  ^ 

It  is  not  quite  clear  just  how  far  this  right  to  review 
the   exercise  of  discretion  by  the  council  extends.     The 

(1)  Glenn  v.  Baltimore,  5  Gill  &  J.  424;   Dunham  v.    Rochester,  5 
Cow.  462. 

(,2)  State  V.  Mott,  61  Md.  297;  s.  c,  48  Am.  Rep.  105. 

(3)  In  Knoxville  v.  Bird,  12  Lea,  121;  s.  c,  47  Am.  Rep.  326. 


166  MUNICIPAL    POLICE    ORDINANCES.  [§  188. 

court  say  in  an  early  case  in  Pennsylvania  that  "  where 
the  municipal  legislature  has  authority  to  act,  it  must  be 
governed  not  by  our  discretion,  but  by  its  own,  and  we 
shall  not  be  hasty  in  convicting  them  of  being  unreason- 
able in  the  exercise  of  it."  ^  If  the  ordinance  bears  plain 
evidences  of  unreasonableness,  or  of  unjust  discrimination, 
or  of  fraud  in  its  inception,  it  should  undoubtedly  be  set 
aside."  Otherwise  the  results  of  its  enforcement  must  be 
shown  to  cause  great  irregularities  of  burdens,  or  to  efiect 
a  violation  of  some  constitutional  or  statutory  right.  An 
ordinance  is  not  defective  because  the  mode  of  resulation 
adopted  by  the  council  does  not  accord  with  the  views  of 
the  judicial  power.'  In  the  absence  of  evidence  of  per- 
nicious results  the  ordinance  will  be  presumed  to  be  reason- 
able.* Courts  should  construe  ordinances  to  be  a  valid  ex- 
ercise of  the  corporate  powers  except  when  the  power  has 
been  grossly  abused.^  Especially  is  that  so  if  the  power 
vested  in  the  corporation  is  exclusive  in  its  nature.  When 
limited  to,  or  concurrent  with,  regulation  also  exercised  by 
the  state,  more  strict  adherence  to  the  power  must  be  de- 
manded.^ Every  presumption  should  be  admitted  to  sup- 
port an  ordinance  which  reasonably  intends  to  efiect  a  law- 
ful purpose.^  In  Illinois  it  has  been  held  that,  in  the  ab- 
sence of  express  statutory  authority,  courts  are  not  author- 
ized to  indulge  in  presumptions  in  favor  of  the  validity  of 
ordinances.^  Whereas,  the  California  courts  go  to  the  other 
extreme  and  hold  that  police  ordinances  as  a  class  are 
valid,  and  that  all  questions,  as  to  whether  a  certain  ordi- 
nance is  directed  against  an  actual  evil,  or  falls  within  the 
terms  of  the  power  contained  in  the  statute  or  charter,  are 
concluded  by  the  discretion  of  the  council.^    In  the  last 

(1)  Fisher  V.  Harrisburgh,  2  Grant's  Cas.  291. 

(2)  Alberger  v.  Mayor,  04  Md.  1 ;  Kensselaer  v.  Leopold,  106  Ind.  29. 

(3)  Knoxviller.  Bird,  12  Lea,  121. 

(4)  Commonwealth  v.  Patch,  97  Mass.  221. 

(5)  Elk  Point  v.  Vaughn,  1  Dak.  108. 

(6)  Baltimore  v.  Clunet,  23  Md.  464. 

(7)  Gabel  v.  Houston,  29  Tex.  336. 

(8)  Schott  V.  People,  89  111.  195. 

(9)  Ex  parte  Smith,  38  Cal.  702;  Ex  parte  Delaney,  43  Cal.  478. 


§  188.]  PROCEDURE — PLEADING — EVIDENCE.  167 

case  cited,  Ex  parte  Delanej,  the  power  was  to  prohibit 
practices  against  good  morals,  and  the  decision  of  the 
council  as  to  what  is  contrary  to  good  morals  was  held 
finals 

But  such  holdings  are  certainly  extreme.  So  long  as  the 
means  adopted  are  not  plainly  and  clearly  unreasonable  on 
their  face,  the  ordinance  provision  will  be  upheld.^  And 
the  legal  presumption  is  iu  favor  of  the  validity  of  the  ordi- 
nance.' 

The  reasonableness  of  an  ordinance  must  at  all  events  be 
judged  solely  from  the  wording  of  its  provisions  and  from 
its  results.  The  motives  of  the  legislative  body  can  under 
no  circumstances  be  inquired  into.* 

Summary.  Were  the  council  to  be  bound  down  by  severe 
rules  it  would  be  little  more  than  a  ministerial  body,  but 
the  purpose  and  essence  of  its  existence  consist  in  the  exer- 
cise of  legislative  functions.  All  legislation,  to  be  effective, 
must  be  based  upon  the  discretion  of  the  law-making  power, 
in  view  of  all  the  circumstances  of  each  case,  as  to  the  par- 
ticular remedies  that  need  to  be  provided.  What  is  proper 
for  one  city  is  seldom  exactly  adapted  to  the  necessities  of 
other  cities.  The  location  of  the  community,  the  nature 
of  its  industries,  the  compactness  of  its  population,  and  the 
character  and  sentiment  of  its  citizens,  among  other  things, 
are  elements  to  be  considered  in  determining  just  what 
measures  are  most  appropriate  to  its  needs  and  consonant 
with  its  policy.  It  follows  that  a  wide  discretion  must  be 
vested  in  the  council.  They  are  iu  the  best  possible  posi- 
tion to  understand  all  these  varying  elements,  and  to  judge 
of  the  best  course  to  pursue.  ,  The  main  object  of  local 
legislation,  the  very  purpose  of  municipal  organization, 
would  be  defeated,  did  not  the  courts  recognize  the  full 

(J)  Likewise  in  Baker  v.  Boston,  12  Pick.  184;  Grierson  v.  County, 
9  U.  C.  Q.  B.  623. 

(2)  Mc Arthur  v.  Saginaw,  58  Mich.  357;    Ex  parte  Gregory  20  Tex. 
App.  210;  15  Bull.  363;  Dillon  Mun.  Corp.,  §  328. 

(3)  Railroad  Co.  v.  Springfield,  85  Mo.  674. 

(4)  Freeport  v.  Marks,  59  Pa.  St.  253 ;  Knoxville  v.  Bird,  12  Lea, 
121;  s.  c.,47  Am.  Rep.  826. 


168  MUNICIPAL   POLICE   ORDINANCES.  [§  188. 

extent  of  this  discretion,  and  refuse  to  interfere  with  its 
exercise,  except  in  cases  of  gross  abuse.  The  unreasonable- 
ness of  the  ordinance  must  plainly  appear  upon  its  face,  or 
it  must  as  evidently  appear  to  have  been  passed  in  a  spirit 
of  wantonness,  or  to  be  based  on  mistake  or  fraud,  before 
the  court  will  declare  it  void.^  The  council  discretion  is 
not  reviewable  unless  private  rights  are  wantonly  invaded 
or  the  power  exceeded.^  When  the  power  is  not  evidently 
abused  and  made  a  pretext  for  doing  what  is  a  violation  of 
constitutional  rights,  the  court  ought  not  to  interfere  with 
the  municipal  discretion.^  The  general  proposition  is  sus- 
tained by  numerous  authorities,  and  with  the  limitations 
just  stated,  the  courts  ought  never  to  set  up  their  judgment 
in  place  of  the  judgment  of  the  council  as  to  the  manner 
and  means  of  exercising  delegated  powers  involving  more 
or  less  discretion.* 

Special  illustrations.  An  ordinance  is  valid  which'author- 
izes  the  mayor  to  revoke  the  license  issued  for  the  sale  of  liq- 
uors, upon  conviction  of  the  licensee  of  keeping  a  disorderly 
house.  Courts  will  not  interfere  with  a  municipal  regula- 
tion, unless  clearly  shown  that  it  is  not  authorized  by  the 
power,  or  that  it  is  in  conflict  with  the  constitution  or  stat- 
utory law.*  A  fee  of  $200,  charged  for  a  license  to  keep  a 
butcher's  stall,  is  reasonable.  The  legislative  discretion  is 
not  to  be  questioned,  unless  grossly  and  mauiftistly  absurd.^ 
If  power  is  granted  to  fix  wharfage  charges,  the  courts  will 

(1)  White  V.  Kent,  11  0.  S.  550;  Sargent  r.  Railroad  Co.,  1  Handy, 
52;  Neier  v.  Railway  Co.,  12  Mo.  App.  25 ;  Brust  v.  Carbondale,  78  111. 
74;  Brewster  V.  Davenport,  51  la.  427;  Erie  v.  Reed's  Executors,  113 
Pa.  St.  468. 

(2)  State  V.  Clarke,  54  Mo.  17 ;  Gas  Co.  v.  Des  Moines,  44  Iowa  509 ; 
St.  Louis  V.  BoflSnger,  19  Mo.  15. 

(3)  Van  Baalen  v.  People,  40  Mich.  258. 

(4)  Harrison  u.  Baltimore,  1  Gill,  264;  Church  «.  Baltimore,  6  Gill, 
391 ;  State  v.  Mott,  61  Md.  297;  Watson  v.  Turnbull,  34  La.  Ann.  856  ; 
Los  Angeles  v.  Waldron,  65  Cal.  283 ;  Holland  v.  San  Francisco,  7  Cal. 
361 ;  Morehouse  v.  Norwalk,  6  Ohio  Law  Bull.  267  ;  St.  Louis  v.  Knox, 
6  Mo.  App.  247. 

(5)  Towns  r.  Tallahassee,  11  Fla.  130. 

(6)  St.  Paul  V.  Colter,  12  Minn.  41. 


§  189.]  PROCEDURE — PLEADING — EVIDENCE.  169 

not  undertake  to  determine  the  limit  to  the  amount  which 
the  municipal  authorities  may  exact,  that  being  an  admin- 
istrative, not  a  judicial,  function.^  Nor  can  the  court  re- 
view the  decision  of  the  council  that  certain  improvements 
are  necessary.^  Under  power  to  define  and  punish  misde- 
meanors, an  ordinance  is  valid  which  enumerates  the  acts 
that  shall  be  deemed  misdemeanors,  and  its  definition  of 
those  acts  is  final  and  binding  on  the  courts.' 

But,  under  power  to  establish  markets  at  such  places  as 
the  council  may  deem  fit,  it  would  be  unlawful  to  author- 
ize their  establishment  in  a  public  highway.* 

§  189.  Reasonableness  a  question  of  law. — It  does  not 
fall  within  the  province  of  the  jury  to  decide  upon  the  va- 
lidity of  an  ordinance ;  they  are  restricted  to  consider 
whether  the  evidence  is  sufficient  to  prove  the  commission 
of  the  act  charged  as  an  offense  in  the  complaint.'  The 
question  as  to  whether  a  certain  ordinance  is  a  reasonable- 
exercise  of  the  discretion  vested  in  the  council,  %vhen 
proper  to  be  considered  at  all,  is  one  of  law,  and  for  the 
court  to  decide  f  unless  it  depends,  in  the  estimation  of  the 
court,  on  the  existence  of  particular  facts  w^iich  are  dis- 
puted.'' What  will  amount  to  a  prohibitory  tax,  so  as  to 
render  an  ordinance  a  virtual  prohibition  of  a  lawful  trade, 
is  a  question  of  fact,  and  evidence  may  be  admitted  to  show 
its  effect.*  It  has,  though,  been  held  that  witnesses  may 
not  be  called  to  show  that  the  restriction  imposed  by  an 
ordinance  is  detrimental  to  certain  businesses.®  But,  in  an 
action  brought  to  punish  an  alleged  violation  of  an  ordi- 
nance regulating  the  sale  of  fresh  meats,  it  is  error  to  in- 

(1)  Municipality  v.  Pease,  2  La.  Ann.  538. 

(2)  Keasy  v.  Louisville,  4  Dana,  154. 

(3)  People  V.  Miller,  38  Hun,  82. 

(4)  St.  John  V.  New  York,  3  Bosw.  483. 

(5)  Washington  v.  Frank,  1  Jones  (N.  Car.),  436. 

(6)  Kirkham  v.  Russel,  76  Va.  956;  St.  Louis  v.  Weber,  44  Mo.  547i' 
Plk  Point  V.  Vaughn,  1  Dak.  108;  Kip  v.  Paterson,  26  N.  J.  298. 

(7)  Clason  v.  Milwaukee,  30  Wis.  316. 

(8)  Sweet  v.  Wabash,  41  Ind.  7. 

(9)  Launder  v.  Chicago,  111  111.  291. 


170  MUNICIPAL   POLICE   ORDINANCES.  [§  192. 

struct  the  jury  that  the  ordinance  is  valid,  unless  they  find 
that  it  is  in  restraint  of  trade.  That  is  for  the  court  to 
find.^  Evidence  tending  to  show  that  the  ordinance  is  in 
fact  unreasonable  is  inadmissible.^ 

The  unreasonableness  of  the  ordinance  must  appear 
clearly.^ 

§  190.  Proof  of  time  and  place  of  committing  the 
offense. — If  an  act  is  an  oflense  only  when  committed  on  a 
certain  day,  such  as  a  violation  of  the  Sunday  laws,  it  must 
be  alleged  and  proven  to  have  been  committed  on  such  a 
day.*  Otherwise,  any  slight  variance  between  the  com- 
plaint and  the  proof  is  immaterial.  So  with  regard  to  the 
place  of  commission.  If  necessary  to  be  alleged,  it  must 
be  proven  to  a  reasonable  certainty,  and  under  all  circum- 
stances the  act,  must  be  proven  to  have  been  done  within 
the  territorial  limits  of  the  corporation.* 

§  191.  Proof  that  act  does  not  fall  within  excep- 
tions.— Ordinances  are  frequently  drawn  so  as  to  exclude 
certain  persons  or  acts  committed  under  certain  circum- 
stances from  their  operation.  In  such  cases  it  is  unneces- 
sary for  the  prosecution  to  adduce  evidence  to  show  that 
the  act  complained  of  does  not  fall  within  the  exception. 
The  exception  need  not  be  negatived  either  by  the  evi- 
dence or  by  the  allegations  of  the  complaint.®  The  burden 
of  proof  is  on  the  defendant  to  prove  that  the  act  com- 
plained of  is  such  a  one  as  falls  within  the  exception. 

§  192.  Testimony  of  defendant. — It  seems  that  an 
action  brought  to  punish  a  violation  of  an  ordinance  is  so 

(1)  Peoria  v.  Calhoun,  29  111.  317. 

(2)  Corrigan  v.  Gage,  68  Mo.  541 ;  Commonwealth  v.  Worcester,  3 
Pick.  462.  Held  error  to  exclude  all  evidence  of  reasonableness  in 
an  action  brought  to  test  the  validity  of  an  ordinance.  Railroad  Co.  v. 
Brooklyn,  37  Hun,  413. 

(3)  St.  Louis  V.  Weber,  44  Mo.  547.  "* 

(4)  HershoflFv.  Beverly,  45  X.  J.  288. 

(5)  Mayor  v.  Nell,  3  Yeates,  475 ;  Taylor  v.  Americus,  39  Ga.  59. 

(6)  Flora  V.Lee,  5  111.  App.  629;  Harbaugh  v.  Monmouth,  74  111. 
367.     Contra,  Regina  v.  Pipe,  1  Ont.  43. 


§   193.]  PROCEDURE — PLEADING — EVIDENCE.  171 

far   criminal  in  its  nature  that  the  defendant  can  not  be 
compelled  to  testify.^ 

§  193.  Construction  of  ordinances.  —  The  general 
rules  followed  in  construing  statutes  are  as  well  applicable 
to  the  construction  of  ordinances.^  A  distinction  must  be 
drawn  between  the  rules  applied  when  considering  whether 
an  ordinance  as  enacted  falls  within  the  terras  of  the  power 
or  not,  and  those  applied  in  determining  whether  a  certain 
act  complained  of  falls  within  the  prohibition  of  an  ordi- 
nance ;  the  rules  in  the  former  case  being'much  more  lenient 
than  in  the  latter.  If  doubt  arises  in  the  latter  case  the 
construction  adopted  is  strict  and  in  favor  of  the  accused, 
although  not  quite  so  strict  as  in  regard  to  penal  laws  of 
the  state.^  But  in  regard  to  their  validity  under  the 
power  expressed,  ordinances  are  specially  entitled  to  a 
reasonable  construction,  because  they  are  less  artificially 
expressed  than  other  laws.*  They  are  enacted  by  bodies 
less  used  to  the  exercise  of  legislative  power,  and  less 
capable  of  observing  niceties  of  distinction  in  the  language 
employed.  Very  few  ordinances  would  stand  the  test  of 
rigid  scrutiny,*  An  ordinance  is  frequently  capable  of 
two  constructions,  one  which  would  bring  its  provisions 
within  the  limits  of  the  power  conferred  upon  the  cor- 
poration, another  which  would  invalidate  it.  That  one 
should  be  adopted  which  gives  effect  to  the  ordinance,® 

Questions  of  construction  are  for  the  court  and  not  for 
the  jury.'^ 

(1)  Day  V  Clinton,  6  111.  App.  477;  Mobile  v.  Jones,  42  Ala.  630. 

(2)  State  V.  Kirkley,  29  Md.  85;  Zorger  v.  Greensburgh,  60  Ind.  1 
Quinette  v.  St.  Louis,  76  Mo.  402;  In  re  Yick  Woo,  68  Cal.  294. 

(3)  Pacific  V.  Seifert,  79  Mo.  210;  Schultz  v.  Cambridge,  38  O.  S.  659 
Chicago  V.  Rumpflf,  45  111.  90;   New  Orleans  v.   Anderson,  9  La.  Ann. 
323. 

(4)  Whitlock  V.  Wilton,  26  Conn.  406. 

(5)  Fii'st  Municipality  v.  Cutting,  4  La.  Ann.  335. 

(6)  Commonwealth  v.  Dow,  10  Mete.  382;  Baltimore  v.  Hughes, 
Adm'r,  1  Gill  &  J.  480;  Merriam  v.  New  Orleans,  14  La.  Ann.  318; 
Johnson  v.  Philadelphia,  60  Pa.  St.  445. 

(7)  Pennsylvania  Co,  "  Frana,  13  111.  App.  91  ;  Wells  Law  and  Fact, 
§71. 


172  MUNICIPAL   POLICE    ORDINANCES.  [§    194. 

An  ordinance  is  not  void  for  want  of  clearness  of  ex- 
pression or  on  account  of  a  difficulty  in  construing  or 
applying  its  provisions.^ 

The  act  complained  of  does  not  constitute  an  offense 
unless  it  falls  plainly  within  the  meaning  of  the  words 
used  by  the  legislative  body  in  framing  the  ordinance. 
Unless  some  peculiarity  of  the  subject-matter  indicates 
otherwise  the  words  used  must  be  taken  in  their  ordinary 
accepted  meaning.  But  the  rule  of  strict  interpretation 
is  not  violated  by  permitting  the  words  of  the  ordinance 
to  have  their  full  meaning,  or  the  more  extended  of  two 
meanings,  nor  by  giving  a  reasonable  meaning  to  the 
words  according  to  the  intent  of  the  law-making  body, 
disregarding  captious  objections  and  even  the  demands  of 
an  exact  grammatical  propriety.* 

Although  that  meaning  must  be  determined  from  the 
face  of  the  ordinance,  it  is  permissible  to  refer  to  the 
statements  made  in  the  debate  on  the  ordinance  on  its 
passage  in  order  to  determine  the  mischief  which  led  to 
its  enactment.'  It  is  to  be  presumed  that  the  council  in- 
tended to  enact  an  ordinance  that  would  be  within  the 
terms  of  their  power,  and  therefore  the  ordinance  ought 
to  be  upheld  whenever  plainly  capable  of  a  validating  con- 
struction, but  extrinsic  evidence  of  the  actual  legislative 
intent  is  never  admissible.* 

Ordinances  which  regulate  the  property  rights  of  the 
citizen  are  subject  to  the  rules  of  construing  contracts,  and 
should  not  be  invalidated  unless  plainly  necessary.* 

§  194.  Where  an  enumeration  is  made  in  an  ordinance 
all  things  not  specially  named  are  impliedl}'  excluded,  and 
general  words  can  not  widen  the  scope  of  special  words 
preceding  them.®     So,  when  the  first  section  of  an  ordi- 

(1)  Smith  V.  Toronto,  10  U.  C.  C.  P.  225. 

(2)  Bishop's  Statutory  Crimes,  chap.  XIII. 

(3)  Ah  Kow  V.  Nunan,  5  Saw.  552. 

(4)  State  V.  Railroad  Co.,  55  Tex.  76. 

(5)  Holland  v.  San  Francisco  7  Cal.  363. 
<6)  Schultz  V.  Cambridge,  38  0.  S  659. 


§  195.]       PROCEDURE PLEADING — EVIDENCE.  173 

nance  enumerates  the  kinds  of  vehicles  which  shall  be 
subject  to  the  payment  of  a  license  fee,  the  use  of  general 
terms  in  the  following  section  which  prescribes  the  amount 
of  the  fee  can  not  be  held  to  extend  the  operation  of  the 
prior  section  to  other  vehicles  than  those  therein  desig- 
nated.^ If  an  ordinance  imposing  the  payment  of  wharf- 
age dues  on  companies  using  the  public  wharves  specifies 
the  companies  to  be  affected  no  other  companies  than 
those  enumerated,  not  even  their  successors  or  new  com- 
panies subsequently  established,  can  be  compelled  to  pay 
the  prescribed  fee.^ 

§  195.  Examples  of  the  application  of  rxiles  of  con- 
struction.— A  short  review  of  a  few  decided  cases  will 
show  how  the  rules  of  construction  are  often  modified  and 
governed  by  the  circumstances  of  the  case.  In  order  to 
sustain  a  charge  of  suffering  domestic  animals  to  run  at 
large  there  must  be  proof  that  the  defendant  either  caused 
them  to  run  at  large,  or  that  he  had  notice  of  their  being 
at  large  and  took  no  steps  to  restrain  them.' 

In  a  prosecution  under  an  ordinance  that  prohibits  fast 
driving  the  motive  for  the  alleged  violation  may  be  consid- 
ered, not  to  entirely  free  the  defendant  from  the  penalty 
imposed,  but  to  lessen  the  amount  of  the  fine  when  dis- 
cretion in  adjudging  the  amount  rests  in  the  magistrate.*^ 
An  ordinance  required  that  all  fish  packed  for  sale  should 
be  first  inspected  and  the  packages  branded  by  the  in- 
spector before  being  offered  for  sale.  The  defendant,  after 
the  packages  were  properly  inspected  and  branded,  repacked 
his  fish  in  smaller  packages  and  offered  them  for  sale.  This 
was  held  to  be  a  sufficient  compliance  with  the  ordinance.^ 
An  ordinance  that  imposed  certain  restrictions  upon  per- 
sons coming  "from  a  place"  infected  with  the  small-pox 
applies  to  those  only  who  leave  such  a  place  after  the  pas- 

(1)  Snyder  v.  North  Lawrence,  8  Kan.  82. 

(2)  Keokuk,  etc.,  Co.  v.  Quincy,  81  111.  422. 

(3)  CoUinsville  v.  Scanland,  58  111.  222. 

(4)  Morton  v.  Princeton,  18  111.  383. 

(5)  Chicago  v.  Hobson,  52  111.  482. 


174  MUNICIPAL    POLICE    ORDINANCES.  [§  195. 

sage  of  the  ordinance  and  come  directly  to  the  town.^  An 
ordinance  that  makes  it  unlawful  to  associate  with  a  pros- 
titute "in  any  public  place,  street,  alley,  common,  or  within 
the  city,"  is  construed  to  cover  only  public  places,  streets, 
alleys,  and  commons.'  A  provision  that  street  cars  going 
in  the  same  direction  "shall  keep  a  certain  distance  apart" 
does  not  apply  to  two  cars  fastened  together.'  The  pro- 
vision that  no  person  shall  put,  or  cause  to  be  put,  in  any 
street  or  other  public  place  "any  dirt,  filth,  shavings,  or 
other  rubbish  or  obstruction  of  any  kind*"  has  been  held 
broad  enough  to  cover  the  obstruction  of  a  street  by  the 
cars  of  a  railroad  company.*  An  ordinance  prohibiting 
the  storing  of  fertilizers  within  the  city  limits  without  ob- 
taining permission  from  the  city  council  does  not  apply  to 
the  transient  storage  of  fertilizers  in  the  store-houses  of  a 
railroad  company.* 

Under  an  ordinance,  power  to  license  a  house  for  danc- 
ing, music,  games,  etc.,  a  license  may  be  granted  for  either 
one  of  those  things  separately,  and  things  not  enumerated 
inthelicense  would  still  be  unlawful.®  The  word  "  aw<T^ "  may 
be  read  disjunctively,  but  only  when  it  becomes  necessary 
to  carry  out  the  intention  of  the  legislators  as  expressed 
by  the  context.''  "Where  an  ordinance  named  the  busi- 
nesses and  professions  to  be  taxed  and  concludes  "and  all 
other  business,  trades,  avocations,  and  professions  what- 
ever," a  license  may  be  demanded  from  an  architect.  The 
maxim  expressio  unius  exclusio  alterius  would  not  apply.* 
An  assault  made  by  one  person  upon  another  with  a  dan- 
gerous weapon  can  not  be  punished  as  a  disturbance.^    The 

(1)  Commissioners  v.  Powe,  6  Jones  (N.  Car.),  134. 

(2)  Zorger  v.  Greenbush,  60  Ind.  1. 

(3)  Bishop  V.  Railroad  Co.,  14  R.  Id.  314. 

(4)  111.  Cent.  R.  R.  Co.  v.  Galena,  40  111.  344. 

(5)  Athens  v.  Railroad  Co.,  72  Ga.  800. 

(6)  Brown  v.  Nugent,  6  Q.  B.  693. 

(7)  Philadelphia  V.  Arrott,  8  Phila.  41;  Smith  v.  Madison,  7  Ind.  86; 
Wright  V.  Railroad  Co.,  7  111.  A  pp.  438. 

(8)  St.  Louis  V.  Herthel,  88  Mo.  128. 

(9)  Walsh  V.  Union,  11  Pac.  Rep.  312. 


§  195.]  PROCEDURE — PLEADING — EVIDENCE.        "  175 

word  street  used  in  an  ordinance  means  a  street  within  the 
city  limits  and  used  as  a  public  highway.^ 

l^umerous  illustrations  of  the  construction  applied  to 
ordinances  will  be  found  in  the  sections  treating  the  ordi- 
nances according  to  their  subject-matter,  yost,  Chapter  XL 

A  punishment  imposed  for  "public  drunkenness"  is  not 
restricted  to  those  who  are  drunk  in  a  public  place,  for  a 
man  may  be  publicly  drunk  in  a  private  place,  if  while  in 
that  condition  he  is  visible  or  accessible  to  any  portion  of 
the  populace.^  The  license  demanded  of  "  second-hand 
dealers  "  does  not  extend  to  those  who  buy  and  sell  second- 
hand articles  as  a  mere  incident  of  their  general  business. 
It  can  only  be  collected  from  those  whose  main  business  is 
in  second-hand  goods.' 

Punitive  ordinances  should  be  enforced  with  some  re- 
gard to  the  ability  of  persons  affected  to  comply  with  their 
provisions ;  thus,  an  ordinance  which  declares  that  the 
owner  of  a  house  used  or  reputed  to  be  used  to  his  knowl- 
edge as  a  house  of  ill-fame  shall  be  deemed  guilty  of  main- 
taining a  public  nuisance,  applies  to  those  only  who  both 
know  of  such  use  or  reputation  and  have  power  to  prevent 
it,  but  which  they  do  not  exercise.* 

But,  duties  imposed  on  the  "  owner  or  driver"  of  certain 
vehicles  are  binding  on  the  owner,  although  he  be  absent 
and  ignorant  of  the  violation  of  the  ordinance.^  The  pro- 
hibition of  "  keeping  open  "  a  certain  place  of  business 
does  not  render  an  actual  user  of  the  place  for  the  purposes 
for  which  it  is  kept  open  necessary  to  constitute  an  offense. 
A  readiness  and  present  ability  to  carry  on  the  usual  busi- 
ness therein  is  a  keeping  open  within  the  contemplation  of 
the  ordinance.®  A  provision  in  an  ordinance  granting  fran- 
chises to  a  railroad  company,  that  it  shall  ever  be  subject 

(1)  Philadelphia  v.  Hughes,  4  Phila.  148-  Chicago  v.  Gosselin,  4  111. 
App.  571.  • 

(2)  State  V.  McNinch,  87  N.  Car.  567. 

(3)  Eastman  v.  Chicago,  79  111.  178. 

(4)  McAllister  v.  Clark,  33  Conn.  91. 

(5)  Daneu.  Mobile,  36  Ala.  304. 

(6)  Lynch  v.  People,  16  Mich.  472. 


176  MUNICIPAL   POLICE    ORDINANCES.  [§   196. 

to  all  the  ordinances  of  a  city,  refers  to  such  ordinances 
only  as  are  reasonable.  The  city  could  not  by  a  subsequent 
ordinance  absolutely  prohibit  the  running  of  trains  upon 
certain  of  its  tracks.^  And  an  ordinance  permitting  a  rail- 
road company  to  use  certain  streets  on  condition  that  it 
permit  other  companies,  not  to  exceed  two,  to  use  the  main 
track,  will  not  be  construed  to  prohibit  the  company  frora 
extending  the  use  of  its  tracks  to  more  than  two  others  if 
it  should  so  desire.^  Permission  to  lay  tracks  and  to  run 
cars  "on,  over,  and  along"  certain  streets  does  not  give 
permission  to  run  cars  above  or  under  the  street.  The 
word  along  is  synonymous  with  on.^ 

Where  privileges  are  granted  to  semi-public  concerns  or 
corporations,  on  condition  of  their  doing  certain  things  if 
ordered,  the  grantee  is  not  restricted  to  await  the  prior 
order  of  the  corporate  authorities,  but  may  perform  the 
acts  whenever  they  seem  advisable.*  Whenever  public 
ministerial  agencies  are  created  for  defined  purposes,  such 
as  the  supervision  of  the  highwaj's,  and  the  ordinance  pro- 
vides that  they  shall  execute  all  the  orders  of  the  council 
or  public  boards,  they  need  not  await  such  order  or  direc- 
tion, but  they  may  perform  such  acts  as  are  within  the 
scope  of  their  agency  under  the  general  implied  powers 
conferred  by  the  creating  ordinance.^ 

To  "  permit "  may  mean  "  to  allow  by  not  prohibiting."* 
Under  power  to  purchase  coffee  for  the  poor,  an  article 
called  "Ottoman  cahvey  "  can  not  be  purchased.' 

§  196.  Defenses  to  prosecutions. — Causes  of  action 
arising  from  the  violation  of  municipal  ordinances  are 
subject  to  the  operation  of  the  statute  of  limitations. 

(1)  Railroad  Company  v.  Joliet,  79  111.  26. 

(2)  Chicago  v.  Railroad  Co.,  95  111.  74. 

(3)  Heath  v.  Railroad  Co..  61  la.  11. 

(4)  Quincy  v.  Bull,  106  111.  337. 

(5)  Noyes  v.  Ward,  19  Conn.  250. 

(6)  Commonwealth  v.  Curtis,  9  Allen,  266. 

(7)  Ottomon  Cahvey  Co.  v.  Philadelphia,  4  AtL  Rep.  745. 


§  198.J      PROCEDURE — PLEADING — EVIDENCE.  177 

Ignorance  of  the  law  excuses  no  one.^  Neither  is  igno- 
rance of  an  ordinance  a  defense  to  a  non-resident,  whose 
property  becomes  amenable  to  the  local  ordinances  by  ly- 
ing or  coming  within  the  corporate  limits.^  Non-residence 
is  in  general  no  defense  to  any  one  who  enters  a  munici- 
pality, and  thereby  puts  himself  within  the  jurisdiction  of 
its  court.^ 

§  197.  Effect  of  a  repeal  of  an  ordinance. — If,  during 
the  progress  of  a  prosecution,  the  ordinance  on  which  it 
is  based  is  repealed,  the  prosecution  must  fail,  unless  the 
repealing  ordinance  contains  some  express  provision 
whereby  all  pending  prosecutions  are  saved  from  its  opera- 
tion.'' 

The  repeal  of  a  resolution  which  itself  repealed  a  prior 
ordinance  has  been  held  to  revive  the  ordinance  by  impli- 
cation.' The  usual  and  proper  method,  however,  is  to 
formally  re-enact  the  old  ordinance. 

§  198.  Former  conviction. — We  have  seen  that  where 
the  same  act  is  punishable  under  an  ordinance  and  under 
some  penal  law  of  the  state,  the  ofiense  is  often  considered 
so  far  double  in  its  nature  that  a  conviction  under  one  law 
will  not  act  as  a  bar  to  a  prosecution  under  the  other.^ 
But  the  reason  for  such  a  holding  fails  where  the  same  act 
can  be  considered  as  an  offense  under  either  of  two  or- 
dinances. The  corporation  may  elect  to  prosecute  for 
either  offense,  but  a  conviction  would  be  a  complete  bar 
to  a  prosecution  for  the  other.^     An  acquittal  would  not 

(1)  Burmeister  V.  Howard,  1  Wash.  Terr.  207;  Palmyra  v.  Morton, 
25  Mo.  593. 

(2)  Knoxville  v.  King,  7  B.  J.  Lea,  441.     See  ante,  §§  142, 143. 

(3)  Buffalo  V.  Webster,  10  Wend.  99;  Mariettas.  Fearing;  4  Ohio, 43. 

(4)  Naylor  V.  Galesburg,  56  111  285;  Kansas  City  v.  Clarke,  68  Mo. 
588. 

(5)  Mayor  v.  New  York.  97  N  Y.  275 

(6)  Ante,  §§  91-120;  State  v.  Welch,  36  Conn.  215;  Mayor  v.  Allaire, 
14  Ala.  400. 

(7)  Eddleston  v.  Barnes,  1  Ex.  Div.  L.  R.  67. 

12 


178  MUNICIPAL    POLICE    ORDINANCES.  [§  200. 

bar  a  prosecution  under  some  other  ordinance,  unless  the 
evidence  that  would  be  necessary  to  convict  under  the 
•second  ordinance  would  also  suffice  to  convict  under  the 
first  ordinance.' . 

§  199.  Other  defenses. — It  can  not  be  urged  as  a  de- 
fense that  the  municipal  corporation  was  improperly  or- 
ganized or  the  trustees  improperly  elected  who  enacted  the 
ordinance.^  Nor  is  it  a  good  defense  that  other  persons 
had  previously  violated  the  same  ordinance,  against  whom 
no  actions  had  been  brought.^ 

It  is  no  defense  to  a  prosecution  for  running  a  railroad 
train  at  a  greater  rate  of  speed  than  is  permitted  by  or- 
dinance, that  the  train  was  carrying  the  United  States 
mail.  Governmental  agencies,  in  the  absence  of  express 
•exception  by  general  statute,  are  just  as  much  subject  to 
local  police  regulation  as  are  private  persons.* 

In  proceedings  to  enforce  an  ordinance  against  strays,  it 
is  a  good  defense  that  the  escape  of  the  animals  was  un- 
avoidable, and  that  the  owner  used  due  diligence  in  at- 
tempting to  reclaim  the  animals.* 

A  principal  is  ordinarily  liable  for  the  unlawful  acts  of 
his  agents  when  performed  in  connection  with  the  scope 
of  their  employment,  and  even  though  he  has  expressly 
prohibited  their  performance,  but  the  owner  of  a  saloon 
is  not  liable  for  an  unlawful  sale  of  liquor  made  by  an  em- 
ploye who  has  no  authority  at  all  to  sell  under  any  cir- 
cumstances.^ 

§  200  The  doctrine  of  estoppel  as  applied  to  de- 
fenses.— The  principle  of  estoppel  may  be  invoked  under 
certain  circumstances  to  protect  the  offender  from  prose- 
cution, or  to  bar  him  from  setting  up  an   otherwise  valid 

(1)  McRea  r  Americus,  59  Ga.  168. 

(2)  Decoraht;  Gillis,  10  la  234;  Redden  r.  Covington,  29  Ind.  118. 

(3)  Charleston  v.  Reed,  37  W.  Va.  681. 

(4)  Whitson  V.  Franklin,  34  Ind  392. 

(5)  Spitler  v.  Young,  63  Mo.  42. 

(6)  Minden  v.  Silverstein  36  La  Ann  912. 


§  201.]  PROCEDUKE — PLEADING — EVIDENCE.  179 

defense.  No  man  may  derive  any  benefit  from  his  own 
wrong ;  hence  he  who  derives  some  advantage  or  benefit 
from  an  ordinance  and  accepts  it,  can  not  attack  its  valid- 
ity.^ So,  if  a  person  accepts  a  license  for  carrying  on  a 
business  otherwise  unlawful,  he  subjects  himself  to  every 
condition  imposed  by  the  ordinance  which  makes  the  license 
necessary,  and  so  far  recognizes  its  validity  as  to  be  estopped 
from  attacking  it.'  It  is  too  late  to  object  to  an  ordinance, 
which  provides  for  certain  improvements,  on  the  ground 
of  irregularity  in  its  passage  after  due  notice  has  been 
given  and  the  work  completed.^  Or  when  one  aids  in  pro- 
curing the  improvement  and  stands  by  while  it  is  being 
made.^  Where  an  ordinance  for  the  construction  of  side- 
walks provides  for  personal  notice,  and  notice  by  publica- 
tion to  be  given  to  the  adjoining  owners,  the  latter  mode 
is  intended  to  bind  those  who  are  not  personally  served, 
and  one  who  was  actually  served  will  not  be  hieard  to  ob- 
ject that  publication  was  omitted.^ 

§  201.  Estoppel  of  the  corporation. — The  corporation 
may  also  be  estopped  of  its  remedy  by  the  acts  or  omis- 
sions of  its  agents.  When  a  person  complies  with  every 
requirement  of  an  ordinance  demanding  a  license,  and  the 
city  refuses  or  neglects  to  issue  him  a  license,  he  can  not 
be  punished  for  failing  to  procure  it.®  So,  if  a  city,  having 
power  to  grant  or  to  withhold  a  license,  grants  one,  it  can 
not  thereafter  enforce  an  ordinance  against  the  licenses, 
which  requires  all  dealers  to  close  their  doors  and  stop 
selling  their  goods  while  any  denomination  of  Christians 
are  holding  services  within  the  city  limits.'' 

Corporations  may  in  various  ways  waive  strict    com- 

(1)  Argenti  v.  San  Francisco,  16  Cal.  255. 

(2)  Launder  v.  Chicago,  111  111.  291. 

(3)  State  V.  Paterson,  40  N.  J.  244. 

(4)  Covington  v.  Dressman,  6  Bush,  210. 

(5)  Chariton  v.  Holliday,  60  la.  391. 

(6)  Zanone  v.  Mound  City,  11  111.  App.  334. 

(7)  Gilman  v.  Wells,  64  Ga.  192;  Genoa  v.  Van  Alstine,  108  111. 
655. 


180  MUNICIPAL   POLICE   ORDINANCES.  [§  202. 

pliance  with  its  police  regulations.^  But  where  a  munic- 
ipal corporation  is  directed  by  the  charter  or  statute  as  ta 
the  mode  of  regulating  some  matter  of  local  interest,  and 
a  person  fails  to  comply  with  an  ordinance  passed  in  com- 
pliance with  such  direction,  there  is  no  presumption  of  a 
waiver  of  a  right  to  punish  a  failure  to  observe  the  or- 
dinance, from  simple  omission  to  proceed  immediately 
after  notice  of  such  failure.- 

Corporations  may  be  barred  of  their  rights  by  their  own 
acts  passed  subsequently  to  the  commission  of  an  offense. 
Still,  it  has  been  held  that  the  right  to  enforce  a  penalty 
for  the  violation  of  afire  limit  ordinance  becomes  vested  in 
the  public,  and  that  the  passage  of  a  resolution  permitting 
the  erection  of  buildings  of  the  same  nature  would  not  bar 
a  suit  to  enforce  the  penalty.* 

§  202.  Form  of  judgment. — In  order  that  judgment 
may  be  rendered  it  must  be  preceded  by  a  finding  of  guilt 
by  a  competent  tribunal.  There  can  be  no  conviction 
without  a  trial.*  "When  the  liability  is  admitted  by  a  plea 
of  guilty  there  must  be  a  formal  determination  of  guilt  by 
the  magistrate  before  proceedings  are  taken  to  enforce  the 
penalty.* 

The  judgment  rendered  should  be  unconditional.  If  ita 
severity  is  to  be  modified,  it  can  be  accomplished  by  remit- 
ting part  of  the  penalty.  The  judgment  can  be  for  noth- 
ing else  than  the  penalty  prescribed  by  the  ordinance  un- 
der which  suit  is  brought.  That  is  the  measure  of  the 
court's  power.  If  an  act  is  threatened  which  would  con- 
stitute a  flagrant  violation  of  some  ordinance,  and  the 
evil  results  of  which  would  entail  irreparable  injury,  the 
remedy  of  injunction  would  lie  in  a  higher  court.  The 
local  court  could  exercise  no  jurisdiction  until  a  breach  of 
the  ordinance.     The   local  court   can    neither     enjoin    a 

(1)  Railroad  Co.  v.  People,  73  111.  542. 

(2)  Urquhart  v.  Ogdensburg,  97  N.  Y.  238. 

(3)  Clark  v.  Elizabeth.  43  N.  J.  173. 

(4)  Craig  v.  Bennett,  32  Ala.  735. 

(5)  Ewbanks  v.  Ashley,  36  111.  177;  King  v.  Jacksonville,  3  111.  305^ 


§  202.]  PROCEDURE — PLEADING — EVIDENCE.  181 

threatened  act,  nor  can  it  enforce  a  positive  act  of  com- 
pliance with  the  ordinance.  Action  of  the  latter  sort 
would  be  in  the  nature  of  mandamus  and  beyond  its  juris- 
diction.^ 

The  only  rule  to  be  observed  in  formulating  the  judg- 
ment of  the  court  is  that  it  must  find  the  defendant  guilty 
as  charged.  This  may  be  done  by  referring  to  the  charge 
or  complaint,  or  by  embodying  its  language  in  the  judg- 
ment rendered.  The  former  method  is  preferable,  because 
in  the  latter  some  risk  is  run  of  inadvertently  omitting 
from  the  words  of  the  judgment  some  essential  element  of 
the  charge,  which  would  be  fatal  to  its  validity.  To  say 
that  "  the  court  finds  the  defendant  guilty  as  charged  and 

decrees  and  adjudges  that  he  pay  a  fine  of  $ ,  etc.," 

adapting  the  punishment  to  that  authorized  by  the  ordi- 
nance, is  unobjectionable.  Even  when  the  form  of  the 
action  is  debt,  a  verdict  of  guilty  is  responsive  to  the  issue.^ 
In  a  jury  trial  the  finding  of  guilt  is  the  duty  of  the 
jury,  and  the  court  merely  adjudges  the  penalty.  If  the 
section  of  the  ordinance  provides  for  an  alternative  penalty, 
the  judgment  is  not  defective  for  assuming  the  same  form. 
Either  of  the  penalties  could  be  enforced.'  But  a  judgment 
that  consists  solely  of  a  repetition  of  the  section  of  the  ordi- 
nance, without  any  averment  as  to  the  issue  found,  is  bad.* 
It  seems  that  a  judgment  is  not  fatally  defective  which  con- 
tains some  surplusage,  provided  the  surplusage  and  the  ma- 
terial elements  are  separable.  Thus,  in  a  prosecution  for  sell- 
ing beer  and  wine  without  a  license,  under  an  ordinance 
which  makes  a  license  necessary  to  authorize  the  sale  of  beer 
and  wine,  a  finding  that  the  defendant  is  guilty  of  selling 
ale,  beer,. and  wine  without  a  license  will  be  sustained,  al- 
though the  corporation  has  no  power  to  license  the  sale  of 
ale,  and  such  a  sale  could  not  be  a  violation  of  the  local 

(1)  People  V.  Railroad  Co.,  11  Hun,  297. 

(2)  Wiggins  v.  Chicago,  68  111.  372;  Pendergast  v.  Peru,  20  111.  51; 
Deitz  V.  Central,  1  Col.  323. 

(3)  Flanagan  v.  Plainfield,  44  N.  J.  118;  Ex  parte  Chin  Yan,  60 
Cal.  78. 

(4)  Long  V.  Brookston,  79  Ind.  183. 


182  MUNICIPAL    POLICE    ORDINANCES.  [§  203» 

law.    Enough  remains  in  the  finding,  after  striking  out  the 
word  ale^  to  establish  a  breach  of  the  ordinance.^ 

All  matters  included  in  the  charge  or  complaint  are  con- 
cluded by  the  judgment  of  the  court.  If  the  charter 
authorizes  the  recovery  of  several  fines  in  one  action,  and 
the  proof  is  clear  as  to  several  distinct  violations  of  the 
ordinance,  the  judgment  should  include  all  the  fines,  because 
it  would  otherwise  have  the  effect  of  an  acquittal  of  those 
violations  which  are  not  fined,  and  would  be  a  complete 
bar  to  a  subsequent  prosecution  on  them.'  If  the  offense 
consists  in  the  wanton  commission  of  some  act,  the  court 
must  find  that  the  act  complained  of  was  wanton^ 

§  203.  The  order  of  commitment  to  jail. — As  soon  as 
judgment  has  been  passed,  immediate  steps  are  taken  for 
its  enforcement.  If  a  fine  alone  is  the  penalty,  execution 
may  issue  whenever  the  action  is  in  the  nature  of  debt,  but 
usually  it  can  only  be  enforced  by  committing  the  defend- 
ant to  jail  until  paid.  When  the  direct  punishment  is 
imprisonment,  the  offender  is  at  once  committed.  In  either 
case  a  formal  mittitur  or  order  of  imprisonment  is  neces- 
sary. A  verbal  order  is  not  sufficient.*  The  order  ia 
directed  to  the  keeper  of  the  jail,  and  commands  him  to 
keep  the  offender  in  custody.  The  terms  of  the  order  or 
writ  vary  with  the  nature  of  the  penalty,  but  in  every  case 
it  must  show  the  cause  of  the  commitment,  the  length  of 
the  imprisonment  and  its  nature.  The  rules  of  procedure 
must  be  strictly  observed.*  Thus,  when  the  ordinances 
provide  that  when  judgment  is  rendered,  if  the  fine  and 
costs  are  not  paid,  the  magistrate  may  commit  the  defend- 
ant until  they  are  paid,  unless  an  appeal  is  taken,  it  would 
be  error  to  commit  after  an  appeal  had  been  taken.  Every 
element  of  the  judgment  that  might  have  a  bearing  to 
determine  the   duration   or  nature   of   the  imprisonment 

(1)  Keokuk  v.  Dressell,  47  la.  597, 

(2)  St.  Charles  v.  O'Mailey,  18  111.  407. 

(3)  Mayor  V.  Wards,  1  Phila.  517. 

(4)  Trustees  v.  Schroeder,  58  III.  353. 

(5)  Carson  v.  Bloomington,  6  111.  App.  481. 


^203.]       PROCEDURE — PLEADING — EVIDENCE.  183 

must  be  clearly  set  forth  in  the  order.  If  the  imprisonment 
be  ordered  as  a  means  of  enforcing  payment  of  a  fine,  the 
writ  must  state  the  amount  of  the  fine,  and  that  the  person 
named  in  the  writ  is  to  be  confined  for  a  certain  definite 
time,  the  time  that  may  be  provided  for  by  law,  or  until 
the  tine  and  costs  have  been  paid.  If  the  law  obliges  the 
offender  to  work  out  the  fine,  the  rate  per  day  at  which  his 
labor  shall  be  estimated  must  be  also  designated.  If  the 
law  allows  the  imprisonment  to  be  coupled  with  labor,  it 
is  error  to  adjudge  that  the  offender  shall  be  kept  at  hard 
labor.^  Not  only  the  termination  of  the  term  of  imprison- 
ment must  be  definitely  fixed,  but  also  its  commencement. 
Thus,  where  an  offender  is  in  jail  for  another  offense  when 
judgment  is  passed,  it  would  be  error  to  sentence  him  to  a 
certain  imprisonment  to  begin  after  the  previous  sentence 
should  expire  or  be  otherwise  disposed  of.'* 

It  is  always  proper  to  include  the  costs  of  the  prosecu- 
tion in  the  amount  that  must  be  paid  before  the  imprison- 
ment shall  cease.  The  municipal  corporation  is  never 
liable  for  costs  in  prosecutions  under  its  ordinances.' 

(1)  Ex  parte  Reed,  1  Cranch,  C.  C.  582. 

(2)  Larney  v.  Cleveland,  3-t  0.  S.  599. 

(3)  Regina  v.  Johnston,  38  U.  Can.  Q.  B.  549 ;  Selma  v.  Stewart,  67 
Ala.  338 ;  Camden  v.  Bloch,  65  Ala.  236 ;  Montgomery  v.  Foster,  54 
Ala.  61.     Contra,  State  v.  Cantieny,  34  Minn.  1 ;  ante,  §  156. 


184  MUNICIPAL   POLICE   ORDINANCES. 


CHAPTER  IX. 

PROCEEDINGS  IN  REVIEW. 

§204.  Certiorari, 
g  205.  Habeas  corpus. 
§  206.  Injunction. 
§  207.   Appeal. 
§  208.  Error. 
§209.  The  record. 

§  204.  Certiorari. — At  common  law  the  only  method  of 
reviewing  the  validity  of  proceedings  for  violation  of  ordi- 
nances was  by  a  writ  of  certiorari^  and  this  is  still  the  proper 
remedy  unless  abrogated  or  superseded  by  statute.  It  is 
properly  used  to  review  the  judicial  acts  only  of  a  municipal 
corporation.^  The  writ  lies  unless  some  other  remedy  is 
provided  by  statute,  in  which  case  the  statutory  mode  alone 
can  be  used.^  The  writ  will  not  issue  if  the  injured  party 
has  any  other  remedy,  and  it"  the  time  within  which  the 
defendant  might  have  perfected  an  appeal  has  expired,  he 
can  only  have  resort  to  certiorari  on  a  special  showing  of 
the  entire  absence  of  negligence  on  his  part.^  Where  no 
other  remedy  is  provided  by  statute,  the  writ  of  certiorari 
is  the  only  method  of  review.* 

The  writ  of  certiorari  is  in  general  of  limited  application. 
When  permissible  it  only  lies  to  review  judicial  acts  for 
errors  of  law  alone.'  It  does  not  lie  after  the  fine  has  been 
paid  or  the  penalty  exacted,  for  there  must  be  some  sub- 

(1)  In  re  Wilson,  32  Minn.  144. 

(2)  Montgomery  r.  Belser,  53  Ala.  379;  Camden  v.  Bloch,  65  Ala. 
236;  Intendant  V.  Chandler,  6  Ala.  297;  Taylor  v.  Americus,  39  Ga.  59; 
Jackson  v.  People,  9  Mich.  Ill ;  State  v.  Bill,  13  Ire.  (N.  Car  )  373. 

(3)  Beasley  v.  Beckley,  28  W.  Va.  81 ;  Poe  v.  Machine  Works,  24  W. 
Va.  517. 

(4)  Loeb  V.  Duncan,  63  Miss.  89;  Corbett  v.  Duncan,  63  Miss.  84. 

(5)  In  re  Wilson,  32  Minn.  144;  Camden  v.  Bloch,  65  Ala.  236. 


§  206.]  PROCEEDINGS   IN   REVIEW.  185 

stantial  injury  to  warrant  such  interposition  of  a  higher 
court.^  Acts  which  involve  the  exercise  of  discretion  are 
considered  ministerial  rather  than  judicial  when  sought  to 
be  reviewed.^ 

Certiorari  does  not  lie  at  the  instance  of  the  corporation ; 
80  that,  unless  special  statutory  provision  is  made  therefor, 
a  trial  and  acquittal  is  final.^ 

The  scope  of  the  writ  of  certiorari  has  been  extended  in 
the  State  of  New  Jersey  even  beyond  that  occupied  by  it  at 
common  law.  In  that  state  it  lies  to  review  errors  and 
remedy  grievances  whether  they  arise  from  the  exercise  of 
judicial  or  ministerial  powers.^  And  it  even  lies  to  declare 
an  ordinance  void  at  the  suit  of  a  party  who  is  affected, 
although  the  ordinance  may  not  yet  have  been  sought  to 
be  enforced  against  him  by  an  action.* 

§  205.  Habeas  corpus. — Questions  as  to  the  validity  of 
proceedings  pending  for  violation  of  municipal  ordinances 
are  sometimes  attempted  to  be  reviewed  through  the  me- 
dium of  the  writ  of  habeas  corpus.  The  right  can  not  be 
denied,  but  such  procedure  is  to  be  deprecated  as  unneces- 
sary, inasmuch  as  the  defendant  always  has  his  recognized 
legal  remedy  by  error,  appeal,  or  certiorari.  It  can  only 
avail  when  the  ordinance  under  which  the  petitioner  has  been 
placed  in  custody  is  as  a  matter  of  law  void.  No  questions 
of  fact  or  of  procedure  can  be  examined  under  the  writ.® 
It  will  not  lie  after  judgment  has  been  passed  to  review 
alleged  errors.''' 

§  206.  Injunction. — The  court  will  not  enjoin  proceed- 
ings brought  to  punish  a  violation  of  a  municipal  ordi- 
nance for  any  reason  that  would  receive  proper  recognition 

(1)  People  V.  Leavitt,  41  Mich.   470;  State  v.  Blauvelt,  34  N.  J.  261. 

(2)  State  V.  Bill,  13  Ire.  (N.  Car.)  373. 

(3)  Cranstone.  Augusta,  61  Ga.  572. 

<4)  Camden  v.  Mulford,  26  N.  J.  49;  Dillon  Mun.  Corp.,  g  927. 

(5)  State  V.  Jersey  City,  29  N.  J.  170. 

(6)  In  re  Wright,  29  Hun,  357. 

(7)  Madden  v.  Smeltz,  2  Circ.  Ct.  Eep.  (Ohio)  168. 


186  MUNICIPAL    POLICE    ORDINANCES.  [§  206. 

by  a  court  of  law  in  the  regular  form  of  proceeding 
brought  to  review  the  action  of  the  local  courts.  That  the 
ordinance  has  not  been  properly  promulgated,  or  that  no 
offense  is  charged,  or  that  the  action  has  been  begun  be- 
fore a  court  which  has  no  jurisdiction,  is  no  ground  for 
injunction.^  If  a  court  of  competent  jurisdiction  has  on 
appeal  or  error  already  declared  an  ordinance  void,  a  court 
of  equity  might  enjoin  subsequent  actions  begun  under 
the  same  ordinance  on  the  ground  that  they  are  vexatious 
and  oppressive.^  As  a  rule,  injunctions  can  only  be  de- 
creed to  prevent  municipal  corporations  from  abusing  their 
franchises  and  powers  when  it  appears  that  the  acts  com- 
plained of  are  unauthorized,  injurious,  and  of  such  a  char- 
acter that  proceedings  at  law  will  furnish  no  adequate 
relief,  or  will  not  prevent  irreparable  injury  of  con- 
sequence.^ 

It  is  equally  true  that  an  injunction  will  not  lie  to  enforce 
a  municipal  ordinance.  The  power  vested  in  corporations 
to  enforce  their  own  ordinances  can  not  be  supplemented 
by  recourse  to  the  courts  of  the  state  for  provisional 
remedies.  If  an  injunction  will  be  granted  it  will  not  be 
because  the  act  complained  of  or  threatened  is  or  would 
be  an  offense  against  some  ordinance  of  the  municipality, 
but  because  it  is  a  nuisance  per  se,  an  act  in  regard  to 
which  the  remedy  of  injunction  would  lie  in  the  absence 
of  any  ordinance  prohibiting  it.*  In  such  case  an  injunc- 
tion might  be  granted  at  the  instance  of  the  corporation, 
l)ut  the  right  would  not  be  influenced  by  its  ordinances. 
If  a  building  has  been  erected  in  violation  of  an  ordinance 

(1)  Dodge  V.  Council  BluflFs,  57  la.  560;  Safe  Co.  v.  Mayor,  38  Hun, 
]46;  Schwab  v.  Madison,  49  Ind.  329. 

(2)  Safe  Co.  v.  Mayor,  38  Hun,  146;  Taylor  v.  Pine  Bluff,  34  Ark. 
603.  It  will  not  lie  to  restrain  a  prosecution  on  an  alleged  illegal 
ordinance.     Poyer  v.  Des  Plaines,  20  111.  App.  30. 

(3)  Gartside  v.  East  St.  Louis,  43  111.  47 ;  West  v.  Mayor,  10  Paige, 
539  ;  Banking  Co.  v.  Jersey  City,  12  N.  J.  Eq.  258. 

(4)  Hudson  v.  Thome,  7  Paige,  261 ;  Waupum  v.  Moore,  34  Wis.  450; 
2  High  on  Injunctions,  §  1243-1244. 


§  207.]  PROCEEDINGS   IN   REVIEW,  187 

its  owner  can  not  enjoin  the  mayor  from  tearing  it  down, 
although  the  mayor  does  so  without  special  authority.' 

§  207.  Appeal. — The  different  states  have  adopted  vary- 
ing policies  as  to  the  mode  of  reviewing  the  proceedings 
of  local  courts.  A  writ  or  petition  in  error  is  more  fre- 
quently authorized,  but  an  appeal  is  often  allowed.  Strictly 
speaking,  an  appeal  is  not  pursued  as  a  method  of  review- 
ing the  judgment  of  a  lower  court,  although  it  can  never 
be  taken  until  such  judgment  has  been  rendered,  but  it  is 
the  privilege  of  a  new  trial  before  a  higher  tribunal.  It  is 
pursued  without  regard  to  the  errors  that  may  have  been 
committed  below.  Its  effect  is  to  entirely  vacate  the  prior 
judgment  and  to  secure  a  new  trial.  All  defects  or  irreg- 
ularities are  cured  by  appeal,  except  that  the  appellant 
may  still  object  to  the  jurisdiction  of  the  lower  court.^ 
A  variance  on  the  former  trial  between  the  complaint  and 
the  evidence  can  not  be  taken  into  account.'  The  form 
and  nature  of  the  action  remain  the  same;  the  court  alone 
is  changed.*  It  seems  that  where  the  right  of  appeal  is 
given,  it  is  such  a  certain  indication  that  the  action  is  con- 
sidered civil  rather  than  criminal  in  its  nature,  that  the 
right  may  be  exercised  by  the  corporation  as  well  as  by 
the  offender  against  its  ordinances.  In  that  case,  the  appli- 
cation of  the  constitutional  privilege  of  the  accused,  that 
he  shall  not  be  twice  put  in  jeopardy  for  the  same  offense, 
does  not  extend  to  prosecutions  under  municipal  ordi- 
nances.' 

When  the  judgment  of  the  lower  court  is  appealed  from 
by  the  defendant,  he  must  give  a  bond  conditioned  upon 
the  due  prosecution  of  the  appeal  and  submission  to  the 
judgment  that  shall  be  rendered.  If  the  appellate  court 
iinds  the  bond  to  be  defective,  it  should  order  a  new  one 

(1)  Aronheimer  u  Stokley,  11  Phila.  283. 

(2)  Alton  V.  Kirsch,  68  111.  261 ;  Byars  v.  Mt.  Vernon,  47  Mich.  192; 
Coulterville  v.  Gillen,  72  111.  599. 

(3)  Harbaugh  v.  Monmouth,  74  111.  367. 

(4)  Webster  v.  Lansing,  47  Mich.  192. 

(5)  Greenfield  v.  Mook,  12  111.  App.  281 ;  Camden  v.  Bloch,  65  Ala. 
236. 


188  MUNICIPAL   POLICE   ORDINANCES.  [§  209. 

to  be  given,  and,  in  default  of  compliance,  should  dismiss 
the  appeal.* 

Appeals  from  prosecution  under  ordinances,  like  appeals 
from  magistrates'  courts  in  civil  causes,  should  be  accom- 
panied by  a  transcript  of  the  proceedings  below  in  order 
that  the  issues  shall  be  before  the  appellate  court.  Then 
they  are  prosecuted  as  though  the  appellate  court  were  the 
court  of  original  jurisdiction.  The  appellate  court  will 
follow  the  same  rules  of  pleading  and  evidence,  so  far  as 
possible,  that  are  observed  in  the  court  below.  Thus,  it 
should  take  judicial  notice  of  the  ordinance,  when  the 
lower  court  might  do  so.^  If,  according  to  the  practice 
below,  the  complaint  need  not  do  more  than  state  the  date 
of  passage  and  the  substance  of  the  ordinance,  with  suffi- 
cient particularity  to  enable  it  to  be  identified,  and  to 
allege  a  violation,  the  same  requisites,  if  complied  with, 
will  be  sufficient  in  the  appellate  court.' 

§  208.  Error. — A  writ  of  error,  or  a  petition  in  error, 
as  it  is  called  in  some  of  the  states,  is  the  usual  method 
provided  for  reviewing  convictions  under  municipal  ordi- 
nances. The  entire  proceedings  of  the  lower  court  may 
thereby  be  brought  before  a  higher  court  for  review  ;  and 
if  it  appears  that  any  errors  were  committed  on  the  trial 
below  which  in  any  material  degree  might  affect  the  find- 
ing of  the  court  or  the  verdict  of  the  jury,  or  if  it  plainly 
appears  that  the  finding  of  the  lower  court  was  contrary  to 
the  weight  of  the  evidence,  the  judgment  will  be  reversed 
and  the  defendant  ordered  free  from  custody.  A  bond 
must  be  given,  conditioned  upon  the  due  prosecution  of  the 
error  proceeding,  else  the  corporation  could  proceed  to  en- 
force the  penalty  adjuged. 

§  209  The  record. — As  nothing  can  be  taken  into  con- 
sideration by  the  higher  court  except  what  appears  upon  the 

(1)  Greenfield  v.  Mook,  supra. 

(2)  Solomon  v.  Hughes,  24  Kan.  211 ;  March  v.  Commonwealth,  12 
B.  Men.  25. 

(3)  Goldthwaite  v.  Montgomery,  50  Ala.  486. 


§  209.]  PROCEEDINGS    IN    REVIEW.  189- 

face  of  the  record,  it  becomes  important  to  consider  just 
how  the  record  should  be  prepared  and  what  it  must  show. 
It  is  advisable  that  the  record  should  be  an  accurate  state- 
ment of  every  thing  that  was  done  in  connection  with  the 
case.  It  should  contain  not  only  the  evidence  given,  but 
also  such  things  as  the  court  below  was  obliged  to  notice 
judicially  in  order  to  reach  its  conclusions.  The  defendant 
is,  however,  charged  with  the  duty  of  bringing  into  the 
record  every  thing  that  was  judicially  noticed,  in  order  to 
base  error  upon  its  insufficiency.  If  the  court  could  take  judi- 
cial notice  of  the  ordinance  and  it  was  not  put  in  evidence^ 
the  court  above  will  presume  that  the  complaint  alleges  an 
act  which  would  constitute  an  oftense  under  the  ordinance,, 
unless  the  defendant  brings  the  ordinance  into  the  record 
in  order  that  it  may  be  compared  with  the  words  of  the 
complaint,  and  in  order  that  the  court  may  pass  upon  its 
validity.^  It  is  always  better  to  formally  put  the  ordinance- 
in  evidence  and  to  let  it  appear  in  the  record ;  for,  if  it  is 
not,  it  may  be  urged  that  the  court  had  no  right  to  take 
judicial  notice  of  it.  It  would,  however,  hardly  be  error 
for  a  reviewing  court  to  also  take  judicial  notice  of  the  or- 
dinance if  justice  necessitates  so  doing. ^ 

With  the  one  exception  of  the  ordinance  itself  in  states 
where  the  local  court  may  take  judicial  notice  of  it,  the 
record  must  show  compliance  on  the  part  of  the  prosecu- 
tion with  every  step  that  is  necessary  to  a  conviction  or 
to  the  rendition  of  judgment.  It  must  show,  to  particu- 
larize : 

1.  The  complaint  or  charge  in  full. 

2.  The  process  issued  in  pursuance  of  the  complaint  by 
which  the  presence  of  the  defendant  was  secured  in  court; 
or  the  notice  given. 

3.  The  action  taken  by  the  police  officer  in  executing 
that  process. 

(1)  New  Orleans  v.  Boudro,  14  La.  Ann.  303;  Baton  Eouge  v.  Cremo- 
nini,  35  La.  Ann.  367;  Idem,  36  La.  Ann.  247;  Morgan  v.  Nolte,  37  0. 
S.  23. 

(2)  March  v.  Commonwealth,  12  B.  Mon.  28. 


190  MUNICIPAL   POLICE   ORDINANCES.  [§  209. 

4.  The  ordiuaiice  upon  which  the  right  to  recover  is 
based. 

5.  The  presence  or  absence  of  the  defendant  at  the  trial. 

6.  That  the  defendant  was  given  an  opportunity  to  plead 
to  the  complaint,  and  his  plea,  if  he  makes  one. 

7.  Formal  trial  in  open  court. 

8.  That  evidence  was  introduced  or  witnesses  examined 
under  oath  or  affirmation. 

9.  Either  from  the  complaint  or  the  evidence  that  the 
court  had  jurisdiction,  viz.,  that  the  offense  was  committed 
within  the  corporate  limits. 

10.  That  the  defendant  was  allowed  to  be  heard  in  his 
own  defense. 

11.  The  finding  of  the  court. 

12.  The  sentence  or  due  entry  of  judgment. 

13.  The  proceedings  taken  to  execute  the  sentence  or 
judgment. 

14.  And  if  it  is  a  case  in  which  a  jury  trial  was  had,  the 
record  must  show  who  were  summoned,  and  who  served, 
that  they  were  duly  sworn,  that  they  were  charged  by  the 
court,  and  the  verdict  which  they  returned.^ 

In  regard  to  all  things  which  need  not  appear  on  the 
record,  the  reviewing  court  will  presume  the  proceedings 
to  have  been  regular;  but  in  regard  to  things  or  steps 
which  must  have  been  done  in  order  to  find  the  defendant 
guilty,  the  presumption  is  in  favor  of  the  defendant.  All 
jurisdictional  matters  especially  must  appear  on  the  record.^ 
If  the  record  shows  the  offense  charged,  that  evidence  was 
given  and  the  defendant  found  guilty,  the  court  will  pre- 
sume that  the  evidence  proved  an  offense  as  charged. 
Objections  to  the  sufficiency  or  admissibility  of  evidence  are 
of  no  avail  unless  the  petitioner  brings  into  the  court  above, 
as  a  part  of  the  record,  all  the  evidence  given  at  the  trial. 
Otherwise  the  opinion  of  the  magistrate  will  be  considered 

(1)  City  V.  Duncan,  4  Phila.  145;  Keeler  v.  Milledge,  24  N.  J.  146; 
Taylor  v.  Americus,  39  Ga.  59  ;  City  v.  Hughes,  4  Phila.  148;  Northern 
Liberties  v.  O'Neill,  1  Phila.  427;  Philadelphia  v.  Roney,  2  Phila.  43; 
Camden  v.  Bloch,  65  Ala.  236. 

(2)  Elizabeth  v.  Woodruff,  30  N.  J.  176. 


I  209.]  PROCEEDINGS   IN    REVIEW.  191 

final.^     It  is  the  right  of  the  defeudant  to  insist  that  every 
question  made  upon  the  trial  shall  be  incorporated  into  the 
record,  for  he  can  only  take  advantage  in  the  reviewing 
court  of  such  errors   as  appear  on  the  record.      But  all 
questions  of  fact  or  law  must  be  raised  in  the  cout  below. 
Technical  questions  as  to  the  jurisdiction  and  form  of  pro- 
cedure, or  as  to  the  sufficiency  of  the  pleadings,  evidence, 
or  judgment  may  be  raised  either  in  detail  or  generally,  by 
demurrer  to  the   pleadings,  motion  to  quash,  motion   to 
dismiss  the  complaint  after  the  evidence  has  all  been  given, 
and  motion  to  suspend  sentence  after  the  court  has  made 
its  finding,  or  after  the  jury  has  returned  its  verdict."     In 
order  to  avail  the  defendant  of  any  errors  or  objections 
which  do  not  appear  upon  the  face  of  the  record,  he  must 
take  a  bill  of  exceptions.     If  no  provision  is  made  for  the 
preparation  of  a  bill  of  exceptions  after  the  close  of  the 
trial,  the  defendant  may  insist  upon  time  during  the  prog- 
ress of  the  trial  to  prepare  the  same  and  procure  it  to  be 
signed  by  the   trial  magistrate.     The  bill  of   exceptions 
becomes  a  part  of  the  record  of  the  trial,  and  should  be 
certified  up  with  it  as  such.     Mandamus  will  lie  to  compel 
the  magistrate  to  sign  the  bill  and  to  certify  it  as  a  part  of 
the  record.     The  record  must  at  least  show  that  a  bill  was 
presented  and  allowed,  and  there  must   be  evidence  on  its 
face  to  show  that  it  is  the  one  which  was  actually  allowed.* 
The  petitioner  must  not  only  cause  the  record  to  be  cer- 
tified up  to  the  reviewing  court,  but  he  must  also  make  a 
formal  claim  in  his  petition  of  the  errors  from  which  he  seeks 
advantage.     The  defect  or  error,  even  though  it  appears 
affirmatively  on  the  face  of  the  record,  must  be  specifically 
assigned  or  covered  by  the  petition  in  error.     The  measure 
of  the  petitioner's  claim  is  his  petition,  and  if  no  claim  of 

(1)  Lynch  v.  People,  16  Mich.  472. 

(2)  Smith  V.  Elizabeth,  46  X.  J.  312 ;  Selma  v.  Stewart,  67  Ala.  338 ; 
Tisdale  v.  Minonk,  46  111.  9;  Jacksonville  v.  Holland,  19  111.  271; 
Moss  V.  Oakland,  88  111.  109;  Stokes  v.  New  York,  14  Wend.  87  ;  Flora 
V.  Lee,  5  111.  App.  629  ;  Bethalto  v.  Conley,  9  Id.  339  ;  Kanouse  v.  Lex- 
ington, 12  7c?.  318. 

(3)  Wertheimer  v.  Boonville,  29  Mo.  254. 


192  MUNICIPAL    POLICE   ORDINANCES.  [§  209. 

error  is  made,  no  relief  can  be  granted.      All  errors  which 
are  not  alleged  are  taken  to  be  waived. 

In  order  to  entitle  the  defendant  to  have  his  conviction 
reviewed,  he  must  not  in  any  way  have  recognized  its 
validity.  Thus,  the  voluntary  payment  of  the  judgment 
would  bar  error  proceedings.^  Payment  under  protest  to 
avoid  imprisonment  is  an  involuntary  payment,  and  if  the 
judgment  should  afterward  be  reversed,  the  defendant 
could  recover  the  amount  paid  with  interest  in  an  action 
brought  for  that  purpose.' 

(1)  Fuhrman  v.  Huntsville,  54  Ala.  263  (see  page  265). 

(2)  Powell  V.  People,  47  Mich.  108. 

(3)  Harvey  v.  Boyd,  42  111.  336. 


§    210.]  RESOLUTIONS.  193 

CHAPTER.  X. 

RESOLUTIONS. 

§  210.  Resolutions. 

§  210a.  What  may  be  done  by  resolution. 

§  210.  Resolutions. — An  ordinance  of  a  municipal 
corporation  may  be  in  the  form  of  a  resolution  and  still 
be  valid,  provided  that  its  enactment  and  promulgation  is 
accompanied  by  all  the  solemnities  and  formalities  pre- 
scribed by  law  for  the  passage  of  ordinances.^  But  in  all 
cases  where  the  charter  or  statute  which  gives  powers  of 
local  regulation  makes  use  of  the  word  ordinance  in 
directing  the  method  in  which  those  powers  are  to  be 
exercised  the  word  is  construed  to  be  used  in  its  legal  signi- 
fication and  the  direction  is  imperative.  The  powers  can 
only  be  exercised  by  ordinances  in  form  as  well  as  effect. 
Where  ordinances  are  specified,  resolutions  are  not  con- 
sidered as  their  equivalents.* 

A  resolution  is  a  less  formal  act  than  an  ordinance.  All 
legislative  acts  of  a  municipal  corporation  which  are  to 
have  continuing  force  and  effect,  and  which  are  to  consti- 
tute regulations  of  local  matters  until  repealed  or  supplanted, 
are  permanent  in  their  nature  and  must  be  expressed  in 
the  form  of  ordinances.  But  municipal  corporations  have 
many  other  acts  to  perform  of  a  quasi-legislative  nature 
which  are  purely  temporary  in  their  effect.  Such  are  its 
assent  to  acts  of  a  private  citizen  which  affect  the  property 
or  rights  of  the  public  temporarily,  the  granting  of  licenses 
for  special  purposes,  the  execution  of  contracts,  the  accept- 

(1)  Manufacturing  Co.  v.  Schell  City,  21  Mo.  App.  175;  Drake  v. 
Eailroad  Co.,  7  Barb.  539;  Tipton  v.  Norman,  72  Mo.  380;  First 
Municipality  v.  Cutting,  4  La.  Ann.  336. 

(2)  Paterson  V.  Barnet,  46  N.  J.  62;  Cross  v.  Morristown,  18  N.  J. 
Eq.  305  ;  Nashville  v.  Toney,  10  B.  J.  Lea,  643;  Bryan  v.  Page  51  Tex. 
532;  Delphi  v.  Evans,  36  Ind.  90. 

13 


194  MUNICIPAL   POLICE    ORDINANCES.  [§   210a. 

auce  of  proposals,  the  declaration  of  its  intention  to 
undertake  some  public  improvement,  and  the  purchase  by 
it  of  property  for  the  use  of  its  fire  or  police  department. 
All  acts  of  that  temporary  character  which  neither  com- 
mand nor  prohibit  any  thing  that  the  public  at  large  can 
do,  may,  in  the  absence  of  any  specific  direction,  be  per- 
formed by  resolution  as  well  as  by  ordinance.  In  fact 
resolutions  are  the  more  proper,  although  an  ordinance 
would  be  as  effective.^  As  a  rule,  all  matters  upon  which 
the  council  wishes  to  legislate  must  be  put  in  the  form  of  an 
ordinance,  and  all  acts  that  are  done  in  its  ministerial 
capacity  may  be  in  the  form  of  resolutions.^  Of  course,  if 
any  other  mode  Is  prescribed  it  must  be  closely  adhered  to. 
Resolutions  are  not  subject  to  the  formalities  prescribed  for 
the  enactment  of  ordinances,  unless  specifically  directed. 
They  do  not  need  to  be  submitted  to  the  mayor  for  his 
approval.^  In  Canada  provision  is  made  whereby  the 
court  may  set  aside  ordinances,  or  by-laws,  as  they  are  there 
designated,  on  the  petition  of  a  citizen  of  the  municipality, 
if  they  prove  to  be  invalid.  It  is  held  that  resolutions  are 
not  by-laws  within  the  meaning  of  that  statute,  and  that 
the  court  has  no  jurisdiction  to  set  them  aside.  If  they 
are  illegal,  they  are  simply  void  and  the  corporation 
renders  itself  liable  to  an  action  for  damages  at  the  hands 
of  any  one  who  is  thereby  injured.* 

§  210a.  What  may  be  done  by  resolution. — The  fol- 
lowing acts  performed  through  the  medium  of  resolutions 
have  been  upheld  :  The  opening  of  a  new  street;'  the  pur- 
chase of  apparatus  for  the  fire  department;®  the  determina- 
tion that  a  sewer  shall  be  built,  and  ordering   it  done;* 

(1)  Lo3  Angeles  v.  Waldron,  65  Cal.  283. 

.(2)  Burlington  v.  Dennison,  42  N.  J.  165;  Quincy  v.  Railroad  Co.,  92 
111.  21;  Green  v.  Cape  May,  41  N.  J.  46;  Grimmell  v.  Des  Moines,  57 
la.  144;  Butler  v.  Passaic,  44  N.  J.  171. 

(3)  Burlington  v.  Dennison,  42  X.  J.  165. 

(4)  Caesar  v.  Cartwright,  12  U.  C.  Q.  B.  341. 

(5)  Sower  v.  Philadelphia,  35  Pa.  St.  236. 

(6)  Green  v.  Cape  May,  41  N.  J.  45. 

(7)  State  V.  Jersey  City,  27  N.  J.  493. 


§   210a.]  RESOLUTIONS.  195 

fixing  the  amount  of  a  license  fee  previously  directed  by 
an  ordinance  to  be  exacted;^  ordering  improvements  on  a 
certain  street  ;^  authorizing  its  agents  to  enter  into  speci- 
fied contracts;'  appointing  architects  to  inspect  the  safety 
of  buildings  in  process  of  construction;*  confirming  past 
acts  performed  by  its  agents.^ 

The  following  acts  attempted  to  be  performed  by  resolu- 
tion have  been  declared  void :  Prescribing  the  payment  of 
license  fees  f  fixing  the  compensation  of  officers.^ 

Resolutions  are  special  and  temporary,  applicable  only  to 
a  single  matter  of  passing  moment;  ordinances  are  per- 
manent regulations,  applicable  to  all  states  of  fact  there- 
after arising  within  the  scope  of  its  provisions.^ 

(1)  Burlington  v.  Insurance  Co.,  31  la.  102. 

(2)  Indianapolis  v.  Imberry,  17  Ind.  175;  Commissioners  v.  Silvers, 
22  Ind.  491. 

(3)  Alton  V.  Mulledy,  21  111.  76. 

(4)  Egan  v.  Chicago,  5  111.  App.  70. 

(5)  Gas  Company  v.  San  Francisco,  6  Cal.  190. 

(6)  People  V.  Crotty,  93  111.  181 ;  s.  c,  3  111.  App.  465. 

(7)  Central  v.  Sears,  2  Col.  588;  Walker  v.  Evansville,  33  Ind.  393. 

(8)  Blanchard  v.  Bisaell,  11  0.  S.  96;  State  v.  Bayonne,  35  N.  J.  335; 
Kempner  v.  Commonwealth,  40  Pa.  St.  124. 


196  MUNICIPAL  POLICE  ORDINANCES. 


CHAPTER  XI. 

OEDINANCES    CLASSIFIED    ACCORDING    TO    THEIR 
SUBJECT-MATTER. 

^211.  Nature  of  police  powers. 

§§  212,213.  Their  general  purpose. 

g  214,  Necessity  and  scope  of  health  regulations. 

§  215.  Boards  of  health. 

§  216.  Regulation  of  articles  of  food. 

§217.  Markets. 

§  218.  Other  regulations  of  the  food  supply. 

§  219.  Slaughter  houses. 

g  220.  Other  'health   regulations :    Cemeteries,   oflFal,  dead  animals^ 

diseases,  miscellaneous. 
§221.  Fire. 
§222.  Fire  limits. 
§  223.  Extent  of  the  power. 
§224.  Streets. 
§  225.  Care  of  the  streets. 
§226.  Grading. 
§227.  Paving. 
§228.  Sidewalks. 
§  229.  Protection  of  streets. 
§  230.  Obstructions. 
§  231.  Examples  of  lawful  obstruction. 
§  232.  Inclosures. 
§  233.  Public  buildings, 
g  234.  Other  buildings, 
g  235.  Snow. 
§  236.  Moving  buildings. 
§  237.  Miscellaneous  obstructions. 
§  238.  Steam  railroads. 
§  239.  Police  regulation  of  steam  railroads, 
g  240.  Street  railways, 
g  241.  Regulations, 
g  242.  Sewerage  system, 
g  243.   Water  supply, 
g  244.  Gas  pipes, 
g  244a.  Telegraph  poles. 

g  245.  Restrictions  on  ordinary  use  of  the  streets, 
g  246.  Vehicles, 
g  247.  Routes  and  stands. 


ORDINANCES    CLASSIFIED,   ETC.  197 


I  248.  Construction  of  vehicle  regulations. 

§  249.  Strays. 

§  250.  Nuisances. 

§251.   Definition. 

§  252.  Must  be  an  actual  nuisance. 

§  253.  Judicial  determination. 

I  254.  What  are  nuisances. 

§  255.  What  are  not  nuisances  Tper  se. 

§  256.  Nature  of  license  power. 

§  257.  Nature  of  licenses. 

§  258.  Must  not  amount  to  a  tax. 

§  259.  What  amount  may  be  charged. 

§  260.  Examples. 

§  261.  The  license. 

§  262.  The  ordinance. 

§  263.  Discretion  in  officers. 

§  264.  The  penalty. 

§  265.  Eflfect  of  a  license. 

§  266.  Conditions. 

§  267.  Revocability. 

§  268.  Grading  and  discrimination. 

§  269.  Miscellany. 

§  270.  Business  privileges. 

§  271.  Transient  dealers. 

§  272.  Peddling. 

§  273.  Amusements. 

§274.  Dogs. 

§  275.  Liquor  licenses. 

§  276.  Ordinance  provisions. 

§  277    Other  regulations. 

§  278.  Definitions. 

§  279.  Evidence  in  liquor  cases, 

§  280.  Uniformity  in  licenses. 

§  281.  Taxation. 

§  282.  Local  assessments. 

§  283.  Other  taxes. 

§  284.  Mode  of  exercise. 

§  285.   Amount. 

§  286.  Constitutional  restrictions. 

§  287.  Discrimination. 

^  288.  Sunday  ordinances. 

§  289.  Appropriations  for  police  purposes. 

§  290.  To  aid  the  administration  of  justice, 

§  291.  To  employ  attorneys. 

§  292.  Wharves. 

3  293.  Conclusion. 


198  ORDINANCES  CLASSIFIED,  ETC.  [§  212» 

§  211.  Nature  of  police  powers.— The  term  "police"' 
in  its  broad  sense  includes  all  the  power  that  may  be  law- 
fully exercised  by  governmental  agencies,  but  it  is  beyond 
the  scope  of  this  work  to  consider  that  class  of  local  legis- 
lation which  relates  to  the  exercise  of  the  property  rights 
vested  in  municipalities,  such  as  taxation,  local  assess- 
ments, and  municipal  assistance  of  private  or  quasi-public 
enterprises.  The  term  as  used  here  is  restricted  to  those 
powers  which  relate  solely  to  the  proper  police  govern- 
ment of  the  municipality.  The  greater  part  of  the  powers 
delegated  to  municipal  corporations  are  of  that  class,  and 
their  exercise  constitutes  an  element  in  the  general  system 
of  police  regulation  of  the  state.  The  precise  nature  and 
extent  of  police  powers  demand  investigation,  because  the 
legislative  expression  of  the  powers  to  be  exercised  by  a 
corporation  is  frequently  restricted  to  the  one  phrase 
"  police  powers,"  and  the  ordinances  enacted  must  then  be 
reasonable  regulations  upon  subjects  which  are  recognixed 
as  falling  within  the  scope  of  such  powers.  Often,  too,  an 
ordinance  which  can  not  be  sustained  under  any  of  the 
special  powers  granted  to  a  municipality,  may  be  sustained 
by  a  general  power  elsewhere  granted  of  regulating  the  po- 
lice of  the  municipality.  A  grant  of  police  power,  how- 
ever, can  never  be  taken  to  authorize  ordinances  upon 
some  subject  which  is  partially  or  imperfectly  given  to  the 
control  of  the  corporation  by  an  express  grant,  for  the  ex- 
istence of  the  express  grant  shows  that  the  legislative 
mind  was  specially  directed  to  that  subject,  and  the 
grant  must  be  taken  as  the  limit  of  its  intention.  And 
where  nearly  all  the  ordinary  police  powers  are  made 
the  subjects  of  express  grants,  only  such  additional  ones 
can  be  exercised  under  a  general  grant  of  police  power 
as  are  absolutely  essential  to  the  welfare  of  the  com- 
munity. 

§  212.  Their  general  purpose. — Police  powers  may  De 
exercised  in  regard  to  any  thing  that  will  further  and  pro- 
tect the  comfort  and  welfare  of  the  public  at  large.    Their 


§  213.]  ORDINANCES   CLASSIFIED,   ETC.  199 

exercise  is  superior  to  all  considerations  of  private  interest 
or  benefit.  Ordinances  passed  iij  the  exercise  of  these  pow- 
ers are  not  obnoxious  to  constitutional  provisions  merely 
because  they  do  not  provide  compensation  to  the  individ- 
ual who  is  inconvenienced  by  them.  He  is  presumed  to 
be  rewarded  by  the  common  benefits  secured.  Pronounced 
instances  are  found  in  all  quarantine  and  health  regulations 
and  in  all  laws  for  the  abatement  of  existing  and  preven- 
tion of  threatened  nuisances.  If  the  public  safety  or  the 
public  morals  require  the  discontinuance  of  any  existing 
condition  of  property,  manufacture,  or  traffic,  the  council 
may  provide  for  its  discontinuance,  notwithstanding  that 
individuals  or  corporations  may  thereby  suffer  incon- 
venience.^ 

Police  power  authorizes  all  regulations  tending  to  pro 
mote  the  public  health,  morals,  security,  and  comfort  of 
the  community.  The  main  subjects  of  police  regulation 
may  be  enumerated  as  nuisances,  markets,  strays,  vehicles, 
the  use  of  the  streets,  the  condition  of  public  and  private 
property,  the  sale  of  dangerous  commodities,  the  keeping 
of  animals,  the  conduct  of  places  of  public  resort,  the  pre- 
vention of  fires,  and  the  observance  of  Sunday. 

§  213.  To  illustrate  by  examples,  the  following  powers 
have  been  held  properly  exercised  under  the  general  police 
power : 

1.  As  promoting  the  health  of  the  community;  to  regu- 
late markets;*  to  regulate  slaughter-houses;^  to  prohibit 
the  keepmg  of  swine  in  certain  districts  ;*  to  prohibit  the 
cultivation  of  rice  within  the  corporate  limits.^ 

2.  As   protecting   the   public   morals;    to  regulate   the 

(1)  Beer  Company  V.  Massachusetts,  97  U.  S.  25;  Bancroft  v.  Cam- 
bridge, 126  Mass.  438;  King  v  Davenport,  98  111.  305;  McKibbin  u. 
Fort  Smith,  35  Ark.  352. 

(2)  State  V.  Bean,  91  N.  C.  554. 

(3)  Worthington  v.  Scribner,  109  Mass.  487;  Vogel  v.  Granz,  16  Chic. 
Leg    News,  191. 

(4)  Commonwealth  v.  Patch,  97  Mass.  221. 

(5)  Green  v.  Savannah,  6  Ga.  1. 


200  MUNICIPAL   POLICE  ORDINANCES.  [§  213. 

traffic  in  intoxicating  liquors ;  *  to  regulate  bawdy  houses ;' 
to  prohibit  lewd  women  from  waiting  upon  customers  of 
saloons  and  restaurants,  even  though  the  prohibition  ex- 
tends to  the  proprietress  of  the  place  f  to  regulate  the 
renting  of  rooms  to  lewd  women;*  to  prohibit  lewd  wo- 
men from  loitering  on  the  streets.* 

3.  As  necessary  to  personal  security  and  comfort ;  to  pre- 
vent the  storage  of  dangergous  articles;^  to  regulate  the 
keeping  of  dogs;^  to  repress  and  restrain  assaults,  riots, 
disorderly  conduct,  unlawful  assemblies  and  breaches  of 
the  peace;*  to  punish  public  libelous  or  slanderous  lan- 
guage as  tending  to  cause  breaches  of  the  peace  ;  ^  to  pun- 
ish attempts  to  aid  prisoners  in  escaping  from  the  custody 
of  officers ;  ^^  to  require  dogs  to  be  muzzled  and  to  author- 
ize the  police  officers  to  kill  those  found  at  large  and  un- 
muzzled ; "  to  require  the  erection  of  guards  around  elevator 
walls;"  to  regulate  the  speed  of  railroad  trains  while  run- 
ning within  the  corporate  limits ;  ^^  to  regulate  the  hours 
of  transacting  any  business  that  may  by  misuse  become  in- 
jurious to  the  people;"  to  restrain  and  take  up  stray  ani- 
mals ; "  to  provide  for  the  prevention  of  fires ;  ^*  to  suppress 

(1)  Schwuchow  V.  Chicago,  68  III.  444;  Miller  v.  State,  3  0.  S.  475. 

(2)  Childress  v.  Nashville,  3  Sneed,  347. 

(3)  State  V.  Canton,  43  Mo.  48. 

(4)  New  Orleans  v.  Costello,  14  La.  Ann.  37. 

(5)  Braddy  v.  Milledgeville,  74  Ga.  516. 

(6)  Little  Rock  v.  Barton,  33  Ark.  436. 

(7)  Carter  i;.  Dow,  16  Wis.  298;  Faribault  v.  Wilson,  34  Minn.  254; 
Commonwealth  v.  Markham,  7  Bush,  486;  Commonwealth  v.  StefiFee,  7 
Bush,  161. 

{S)  Commonwealth  v.  Turner,  1  Cush.  493;  Mayer  v.  Allaire,  14  Ala. 
400;  Trimble  V.  Bucyrus,  5  Cin.  L.  Bull.  (Ohio),  15;  People  r.  Miller, 
38  Hun.  82. 

(9)  Commonwealth  v.  Turner,  1  Cush.  493. 

(10)  Independence  v.  Moore,  32  Mo.  392. 

(11)  Hallerv.  Sheridan,  28  Ind.  494. 

(12)  Mayor  v.  Williams,  15  N.  Y.  502. 

(13)  Merz  v.  Railroad  Co.,  88  Mo.  072. 

(14)  Chebanse  V.  McPherson,  15  111.  App.  311. 

(15)  Centerville  v.  Lanham,  67  Ga.  753;  Wilcox  v.  Hemming,  58  Wis. 
144;  New  Orleans  V.  Blanc,  I  La.  Ann.  385. 

(16)  Wadleigh  v.  Gilman,  12  Me.  40:5;  Brady  v.  Insurance  Co.,  11 
Mich.  425;  Mayor  v.  Hudson,  7  Paige,  261. 


§  213.]  ORDINANCES   CLASSIFIED,   ETC.  201 

vagrancy  ;^  to  prescribe  regulations  of  a  sanitary  nature  ;^ 
to  regulate  the  observance  of  the  Sabbath ;  ^  to  provide 
hospitals ;  *  to  regulate  the  use  of  the  streets  and  to  keep  them 
in  passable  condition  ;  ^  to  require  common  carriers  to  take 
out  licenses;®  to  prohibit  deposits  of  rubbish  and  broken 
wares  except  in  designated  places;''  at  the  time  of  the 
evacuation  of  Richmond  to  require  the  destruction  of  all 
liquors  found  within  the  city  limits  and  to  provide  for  in- 
demnifying the  owners  of  goods  destroyed;^  to  require 
pawnbrokers  to  deliver  to  the  police  authorities  before 
midnight  of  each  day  a  list  of  all  articles  received  that 
day,  together  with  descriptions  of  the  pledgors ;  ^  to  com- 
pel all  brokers  to  obtain  a  license.^" 

But  it  has  been  held  unlawful  under  general  police  pow- 
ers to  punish  assault  and  battery ;"  to  grant  the  privilege 
of  erecting  and  maintaining  toll  bridges  ;^^  to  require  cot- 
ton merchants  to  keep  a  record  of  their  sales  ;^^  to  punish 
all  persons  who  may  be  found  on  the  streets  after  ten 
o'clock  p.  M.;^*  to  order  the  removal  of  buildings  on  the 
ground  that  they  have  been  adjudicated  to  be  within  the 
line  of  a  street ;"  to  levy  any  form  of  taxes.^^ 

The  remaining  pages  of  this  chapter  will  be  devoted  to 

(1)  St.  Louis  V.  Benzt,  11  Mo.  61. 

(2)  Bliss  v.  Kraus,  16  0.  S.  54. 

(3)  Piqua  v.  Zimmerlin,  35  0.  S.  507  ;  St.  Louis  v.  Caflferata,  24  Mo.  94 

(4)  Vionet  v.  First  Municipality,  4  La.  Ann.  42. 

(5)  Palmyra  v.  Morton,  25  Mo.  593;  Palmer  v.  Way,  6  Col.  106;  Rail- 
way Co.  V.  Hoboken,  41  N.  J.  71. 

(6)  Havana  v.  Vanlaningham,  17  111.  App.  62;  Railway  Co.  v.  Phila- 
delphia, 58  Pa.  St.  119. 

(7)  Ex  parte  Casinello,  62  Cal  538. 

(8)  Jones  v.  Richmond,  18  Gratt.  517. 

(9)  Launder  v.  Chicago,  111  111.  291. 

(10)  Little  Rock  v.  Barton,  33  Ark.  436. 

(11)  People  V.  Bi'own,  2  Utah,  462,  certainly  not  in  accord  with  the 
weight  of  authority. 

(12)  Williams  v.  Davidson,  43  Tex.  1. 

(13)  Long  V.  Taxing  District,  7  B.  J.  Lea,  134. 

(14)  Memphis  v.  Winfield,  8  Humph.  707. 

(15)  Dawes  v.  Hightstown,  45  N.  J.  501. 

(16)  Desty  on  Taxation,  1380. 


202  MUNICIPAL    POLICE    ORDINANCES.  [§  214. 

a  detailed  cousideration  of  the  various  classes  of  police  or- 
dinances, arranged  according  to  their  subject-matter. 

§  214.  Necessity  and  scope  of  health  regulations. — 
Among  the  more  important  of  the  police  powers  is  that  of 
caring  for  the  health  of  the  community.  It  may  always  be 
exercised,  whether  expressly  granted  or  not,  because  the 
preservation  of  the  health  of  tlie  people  is  indispensable  to 
the  existence  of  the  corporation.  The  power  is  hardly  sus- 
ceptible of  exact  definition,  for  the  exigencies  of  each  case 
are  varying  and  the  occasions  innumerable  when  the  health 
of  the  inhabitants  is  in  some  degree  endangered.  It  is  the 
policy  of  the  law  to  favor  such  legislation  as  being  humane 
and  essential  to  the  preservation  of  life,  and  when  the 
council  considers  that  some  occupation  or  thing  is  danger- 
ous to  health  the  exercise  of  its  discretion  in  the  passage 
of  regulatory  ordinances  will  not  be  questioned  by  the 
court  except  in  extreme  cases.  A  greater  degree  of  liberty 
of  legislative  action  is  allowed  to  municipalities  in  this 
direction  than  in  any  other,  for  the  necessity  of  speedy 
prevention  is  more  urgent  and  the  consequences  of  neglect 
more  detrimental  to  the  public  good  than  in  regard  to  any 
other  form  of  local  evil.  "  No  power  is  more  important 
than  that  for  the  preservation  of  the  public  health.  It  is 
not  only  the  right  but  the  imperative  duty  of  the  city  gov- 
ernment to  watch  over  the  health  of  the  citizens  and  to  re- 
move every  nuisance,  so  fur  as  they  may  be  able,  which 
may  endanger  it.  And  they  have,  necessarily,  the  power 
of  deciding  in  what  manner  this  shall  be  done,  and  their 
decision  is  conclusive,  unless  they  transcend  the  powers 
conferred  by  the  city  charter  or  violate  the  constitution."^ 

In  a  general  way,  the  power  of  caring  for  the  health  of 
the  community  includes  power  to  enact  ordinances  in  re- 
gard to  the  removal  of  offal,  the  cleaning  of  the  streets,  the 
location  and  use  of  cemeteries,  the  care  of  infectious  dis- 
eases, the  erection  and  maintenance  of  hospitals  and  pest- 
houses,  the  quarantine  of  vessels  and   trains,  the  public 

(I)  Baker  v.  Boston,  12  Pick.  184. 


§  215.]  ORDINANCES    CLASSIFIED,  ETC.  203 

water  supply,  the  sewerage  system  of  the  municipality,  the 
purity  and  wholesomeness  of  food  and  drink,  and  the  con- 
duct and  continuance  of  all  trades,  employments,  and  busi- 
nesses, whether  mercantile  or  manufacturing,  which  tend 
to  pollute  the  air  or  the  earth. 

§  215,  Boards  of  health. — The  power  to  enact  ordi- 
nances of  this  class  is  plain.  But,  some  provision  must 
be  made  for  an  effective  ministerial  agency  to  supervise 
and  direct  the  details  of  the  execution  of  such  ordinances, 
and  to  act  in  cases  of  emergency  without  the  specific  di- 
rection of  the  corporate  council.^  For  this  purpose  boards 
of  health  may  be  organized  and  full  powers  of  detailed 
supervision  delegated  to  them.  So  far  as  possible,  general 
regulations  should  be  prescribed  by  the  council,  biit  as  to 
all  matter  of  temporary  or  sudden  necessity  the  foresight 
of  the  council  can  not  be  relied  upon,  and  broad  powers 
must  necessarily  be  delegated  to  the  board  of  health. 

The  rules  and  regulations  which  the  board  of  health 
may  see  fit  to  make  are  not  ordinances  in  the  sense  which 
would  demand  the  same  formalities  in  regard  to  their 
adoption,  or  the  same  strictness  in  construing  their  pro- 
visions, although  for  their  violation  the  same  remedies  may 
be  authorized  to  be  pursued.  The  only  definite  restriction 
on  the  power  to  pass  ordinances  regulating  things  that 
affect  health,  and  to  provide  detailed  regulations  through 
a  board  of  health,  is  that  the  ordinances  and  regulations 
must  not  be  used  as  a  cloak  for  other  kinds  of  regulation. 
Thus,  it  is  proper  to  regulate  the  quality  of  breadstuffs, 
but  the  weight  and  price  of  bread  are  beyond  the  province 
of  health  regulation.^  It  is  proper  to  require  that  build- 
ings shall  be  so  erected  as  to  be  free  from  sanitary  defects, 
but  the  thickness  of  the  walls  could  not  be  regulated  as 
having  any  thing  to  do  with  health.^  So,  the  board  of 
health  could  bind  the  municipality  to  pay  for  necessary 
medicines  furnished  to  paupers,  but  it  could  not  for  medi- 

(1)  Boehm  v.  Baltimore,  61  Md.  259. 

(2)  Guillotte  V.  New  Orleans,  12  La.  Ann.  432. 

(3)  Hubbird  v.  Paters.jn,  45  N.  J.  310. 


204  MUNICIPAL   POLICE   ORDINANCES.  [§  217. 

cines,  however  necessary,  furnished   to  persons  who  are 
able  to  pay  for  them.^ 

§  216.  Regulation  of  articles  of  food. — It  is  necessary 
to  regulate  the  sale  of  articles  of  food  in  order  that  no  im- 
pure or  unwholesome  food  shall  reach  the  consumer,  and 
in  order  that  the  air  may  not  be  polluted  by  the  improper 
exercise  of  any  business  which  is  devoted  to  the  production 
or  preparation  of  food,  the  former  object  being  the  most 
important.  If  every  one  may  sell  produce  and  articles  of 
food  at  any  place  he  chooses,  the  municipal  authorities 
can  not  exercise  an  efi'ective  supervision  over  them ;  and, 
hence,  it  is  first  of  all  proper  that  the  sale  of  such  articles 
as  are  most  apt  to  become  stale  or  unfit  for  use,  should  be 
restricted  to  known  localities.  This  uecessitv  is  recosrnized 
in  the  market  laws  of  every  city. 

§  217.  Markets. — Cities  have  full  power  to  restrict  the 
sale  of  edible  commodities,  provided  that  the  restriction 
is  accompanied  by  a  designation  of  some  locality  where 
sales  may  be  lawfully  made.^ 

In  order  to  make  such  regulations  effectual,  market-places 
and  houses  may  be  erected.  They  must  be  suitable  to  the 
purpose,  but  as  in  the  case  of  other  public  buildings,  the 
corporation  may  build  a  larger  market-house  than  is  neces- 
sary for  that  one  purpose,  and  may  rent  the  upper  part  or 
unoccupied  part  to  private  individuals.^ 

Power  to  establish  and  regulate  markets  includes  power 
to  purchase  a  site,  to  build  a  market-house,  and  to  enforce 
reasonable  and  just  rules  for  its  regulation,  with  reference 
to  peace,  health,  and  good  order.  Such  rules  must  be  of 
a  police  or  sanitary  character,  and  must  not  operate  so  as 
to  restrain  trade.  They  are  restricted  to  reasonable 
regulation.*    Here,  as  in  other  cases,  every  thing  may  be 

(1)  Mclntire  v.  Pembroke,  53  N.  H.  462. 

(2)  Lamarque  v.  New  Orleans,  1  McGloin,  28. 

(3)  Spaulding  v.  Lowell,  23  Pick.  71. 

(4)  Caldwell  v.  Alton,  33  111.  416;  Ketchum  v.  BuflFalo,  14  N.  Y.  356; 
Pmith  V.  Newburn,  70  N.  0.  14. 


§  217.]  ORDINANCES    CLASSIFIED,    ETC.  205 

done  that  is  necessary  to  the  complete  execution  of  the 
power.  For  instance,  architects  may  be  employed  to  pre- 
pare plans.^  Power  to  build  market-houses  includes  power 
to  lease  a  building  for  market  purposes,  if  the  council 
deem  that  preferable  to  building.^ 

The  power  to  establish  markets  implies  of  necessity  the 
power  to  restrict  the  sale  of  certain  articles  of  food  to  the 
locality  provided.  Thus  it  is  proper  to  prohibit  the  sale 
of  fresh  meat  in  less  quantities  than  a  quarter,  except  at 
the  market-house  f  and  to  prohibit  the  sale  of  oysters  out- 
side the  market  ;*  and  to  prohibit  the  sale  of  meat  in  any 
quantity,  except  at  specified  places.^ 

But  it  has  been  held  that  an  ordinance  is  unreasonable 
which  prohibits  the  sale  of  fresh  meats  at  any  time  during 
the  day  within  the  city  limits,  except  at  a  single  designated 
place.  The  restriction  could  only  extend  to  reasonable 
market  limits  and  during  certain  hours.^ 

If  a  public  market  adequate  to  every  need  be  estab- 
lished, the  opening  of  any  other  markets,  how^ever  well 
regulated,  may  be  made  unlawful.'^  Under  a  power  to 
regulate  the  sale  of  meat  an  ordinance  prescribing  fixed 
markets  and  market  limits  is  valid.^  But  the  same  restric- 
tion is  placed  upon  the  freedom  of  corporate  action  as 
upon  that  of  private  persons,  in  that  no  market  may  be 
established  so  as  to  obstruct  the  street.^ 

After  markets  and  market  limits  have  once  been  estab- 
lished, it  becomes  necessary  to  prescribe  regulations  for 
their  proper  conduct.  As  to  matters  of  detail  and  of  a 
purely  police  nature,  the  markets  may  be  placed  under  the 

(1)  Peterson  v.  New  York,  17  N.  Y.  449. 

(2)  Wade  v.  Newburn,  77  N.  C.  460. 

(3)  Davenport  v.  Kelly,  7  la.  102. 

(4)  Morano  v.  Mayor,  2  La.  217. 

(5)  Buffalo  V.  Webster,  10  Wend.  99. 

(6)  Bloomington  v.  Wahl,  46  111.  489. 

(7)  State  V.  Gisch,  31  La.  Ann.  544. 

(8)  St.  Louis  V.  Jackson,  25  Mo.  37;  St.  Louis  v.  Weber,  44  Mo.  547. 

(9)  Wartraan  v.  Philadelphia,  33  Pa.  St.  203;  State  v.  Mobile,  5 
Port.  279 ;  St.  John  v.  New  York,  3  Bosw.  483 ;  Columbus  v.  Jacques,. 
30  Ga.  506. 


206  MUNICIPAL    POLICE   ORDINANCES.  [§  217. 

supervision  of  the  general  police  or  of  some  officer  spe- 
cially appointed  for  the  purpose.  But  as  to  general  mat- 
ters, the  regulation  should  be  imposed  by  ordinance.  In 
order  to  reimburse  the  corporation  for  the  expense  of  main- 
taining the  market  and  of  proper  supervision  it  is  only 
just  that  those  enjoying  the  market  privileges  should  be 
compelled  to  pay  a  license  fee  of  some  nature.  The  im- 
position of  a  fee  of  twenty-five  cents  per  day  and  a  fine 
of  five  dollars  for  non-payment  is  reasonable.^  So,  the 
market  may  be  divided  into  stalls,  and  a  license  demanded 
for  their  occupancy.^  It  is  held  that  an  ordinance  is  valid 
that  provides  that  no  one  living  within  twenty  miles  of  the 
market  shall  occupy  a  stand  until  he  shows  that  his  goods 
are  the  produce  of  his  own  farm,  or  of  some  farm  within 
three  miles  of  his.^  A  clause  in  an  ordinance  prohibiting 
the  sale  of  meat  without  license,  excluding  farmers^  does 
not  extend  to  a  butcher  by  trade  who  sells  meat  from  his 
own  farm.* 

Market  regulations  must  be  uniform  in  their  operation 
on  all  persons.  They  must  not  discriminate  or  create 
monopolies.^  Thus,  the  grant  of  an  exclusive  market 
privilege  to  one  or  more  specified  persons  for  a  definite 
period  of  time  is  unlawful.^  It  is  lawful,  however,  to  pro- 
hibit the  sale  of  meat  except  in  places  to  he  designated  by 
a  market  board  and  in  the  public  markets.^  It  is  proper, 
too,  to  separate  the  wholesale  and  retail  trade  in  the  mar- 
kets, prescribing  a  penalty  for  retailing  within  the  whole- 
sale limits.*  After  markets  are  established  their  use  may 
be  regulated  by  any  reasonable  rules  or  ordinances.  The 
method  of  selling  goods,  the  arrangement  of  the  stalls  and 

(1)  Cincinnati  v.  Buckinghani,  10  Ohio,  257. 

(2)  Nightingale  V.  Petitioner,  11  Pick.  167. 

(3)  Commonwealth  v.  Rice,  9  Mete.  253. 

(4)  Rochester  v.  Pettinger,  17  Wend.  265. 
(6)  State  V.  Gisch,  31  La.  Ann.  544. 

(6)  Gale  v.  Kalamazoo,  1  Mich.  N.  P.  5. 

(7)  Kelly  v.  Toronto,  23  U.  C.  Q.  B.  425. 

(8)  Strike  v.  Oblline,  54  L.  T.  Rep.  (N.  S.)  152;  s.  c,  34  Alb.  L.  J. 
343. 


§  218.]  ORDINANCES    CLASSIFIED,  ETC.  207 

the  wartfe  in  them,  and   the   mode  of  weighing  produce 
and  meat  may  all  be  prescribed.^ 

There  is  some  restriction  on  the  power  of  the  munic- 
ipality to  locate  markets.  That  the  establishment  of  a 
market  in  a  certain  place  obstructs  a  street  to  a  small  ex- 
tent is  no  objection,  but  a  whole  street  could  not  be  ap- 
propriated for  market  purposes  ;  for  the  public  right  of 
way  is  a  prior  and  superior  easement.  Nor  could  the  mar- 
ket be  established  on  the  curbstone  and  edge  of  the  street 
in  front  of  business  places.^ 

§  218.  Other  regulations  of  the  food  supply. — Under 
a  power  "  to  regulate  the  vending  of  meats,  vegetables,  etc.," 
an  ordinance  imposing  a  fine  for  selling  putrid  meats  has 
been  held  void,  the  power  being  construed  to  apply  to  the 
mode  of  vending  and  not  to  the  character  of  the  thing  sold/' 
Under  power  to  regulate  the  police  and  to  maintain  the 
good  order  of  the  community,  an  ordinance  is  unreasonable 
which  provides  that  a  fee  of  five  cents  shall  be  paid  for 
every  sale  and  delivery  of  hay  and  other  produce.*  But  it 
is  otherwise  where  provision  is  made  for  weighing  hay  by 
a  public  weigher,  a  reasonable  fee  for  the  service  being 
proper.  Thus,  under  power  to  regulate  the  place  and  man- 
ner of  selling  hay,  an  ordinance  is  valid  that  forbids  the 
exposure  of  hay  for  sale  without  a  prior  weighing  and  the 
obtaining  a  certificate  to  be  shown  to  the  purchaser,  a  charge 
of  twelve  cents  per  load  being  made  for  the  weighing.^ 
Such  weighing  may  be  made  compulsory  under  a  heavy 
penalty  for  neglecting  to  comply  with  the  ordinance.®  So, 
as  to  coal.^  In  the  exercise  of  health  powers  the  corpora- 
tion may  prohibit  the  sale  of  the  milk  of  cows  that  are  fed 

(1)  Snell  V.  Belleville,  30  U.  C.  Q.  B.  81. 

(2)  Kites  V.  Dayton,  6  Ohio  Law  Bull.  142  ;  Wells  on  Law  and  Fact, 
§253. 

(3)  Mayor  v.  Rood,  Hill  &  Den.  Supp.  146. 

(4)  Kip  V.  Paterson,  26  N.  J.  298. 

(5)  Yates  v.  Milwaukee,  12  Wis.  673. 

(6)  Taylor  v.  Pine  Bluff,  34  Ark.  603. 

(7)  Ex  parte  Heilbron,  65  Cal.  609. 


208  MUNICIPAL    POLICE   ORDINANCES.  [§  219. 

on  slops  or  other  improper  food.^  The  sale  of  milk  that  i» 
in  any  degree  adulterated  may  be  prohibited ;  and,  as  a  means- 
of  rendering  such  a  regulation  effectual,  a  license  fee  may 
be  demanded  from  every  peddler.^  An  adequate  supply  of 
wholesome  water  may  be  provided  by  the  corporation  for 
the  use  of  the  inhabitants,  and  regulations  made  to  preserve- 
its  purity,  under  any  general  grant  of  police  powers.' 

§  219.  Slaughter-houses. — The  business  of  slaughtering 
is  inseparable  from  sanittiry  evils,  and  it  may  properly  be 
excluded  from  the  corporate  limits,  or  at  least  under  power 
granted  to  regulate  and  restrain  slaughter-houses.*  A 
power  "  to  direct  the  location  and  management  of  slaughter- 
houses" authorizes  the  restriction  of  slaughtering  to  a  single 
building.*  But  it  has  been  held  that  the  power  to  prohibit 
and  prevent  the  location  or  construction  of  buildings  used 
for  slaughter-houses  does  not  authorize  a  total  prohibition, 
and  that  the  regulations  must  be  limited  to  the  prohibition 
of  future  erections  and  to  the  regulation  of  those  alread}*  in 
use.®  The  slaughtering  a  single  animal,  or  even  several 
animals,  if  not  a  regular  occurrence,  does  not  make  the 
place  where  it  was  done  a  slaughter-house  within  the 
meaning  of  that  term  as  used  in  ordinances.'  An  ordinance 
prohibiting  slaughter-houses  may  be  enforced  by  abating^ 
the  business  if  carried  on  regardless  of  the  ordinance.^ 

Such  houses  may  be  restricted  to  certain  specified  parts 
of  the  city.'  The  limits  must  be  defined  by  the  ordinance 
and  not  left  to  the  discretion  of  the  board  of  health  or  of 

(1)  Johnson  v.  Simonton.  43  Cal.  242. 

(2)  People  V.  Mulholland,  82  N.  Y.  324;  Polinsky  v.  People,  73  N. 
Y.  65. 

(3)  Livingston  v.  Pippin,  31  Ala.  542;  Rome  v.  Cabot,  28  Ga.  50. 

(4)  Pierce  v.  Bartrum,  Cowp.  269 ;  Ex  parte  Heilbron,  65  Cal.  609. 

(5)  Milwaukee  v.  Gross,  21  Wis.  241. 

(6)  Wreford  v.  People,  14  Mich.  41. 

(7)  St.  Paul  V.  Smith,  25  Minn.  372. 

(8)  Wreford  v.  People,  14  Mich.  41  (only  if  it  is  an  actual  nuisance). 

(9)  Board  v.  Heister,  37  N.  Y.  661. 


§  220.]  ORDINANCES   CLASSIFIED,    ETC.  209 

some  officer,  or  even  to  the  sabsequently  expressed  will  of 
the  council  itself.^ 

§  220-  Other  health  regulations — Oemeteries. — Ceme- 
teries are  not  per  se  nuisances  or  injurious  to  the  public 
health,  but  they  become  so  if  closely  surrounded  by  dwell- 
ing or  business  houses,  or  if  not  properly  carod  for.^  The 
council  must  determine  when  they  have  become  such,  and 
when  it  is  necessary  to  exercise  control  over  them,  and  the 
exercise  of  its  discretion  can  not  be  reviewed  unless  plainly 
unavoidable  or  unnecessarily  destructive  of  private  prop- 
erty. It  would  be  unreasonable  to  f)rohibit  any  burials  in- 
side of  the  city  limits  in  a  sparsely  populated  municipality.^ 
It  is  always  lawful  to  prohibit  burials  within  certain  densely 
populated  districts,  even  though  the  original  right  to  use  a 
cemetery  lying  within  the  proscribed  limits  came  from  the 
city  and  has  been  exercised  for  over  a  hundred  years.* 
Whenever  it  is  lawful  to  bury  the  dead  inside  of  the  corpo- 
rate limits,  all  burials  may  be  regulated,  but  not  entirely 
controlled  by  the  municipality.  The  right  to  bury  the  dead 
belongs  to  the  family  of  the  deceased  or  to  his  friends,  and 
it  can  not  be  taken  away  from  them  so  long  as  they  are 
able  and  willing  to  conform  to  the  regulations  prescribed. 
The  corporation  is  limited  to  defining  the  limits  within 
which  burials  may  be  made,  and  to  regulating  the  time  of 
day,  the  depth  of  the  burial,  the  distance  between  graves, 
the  use  of  the  vaults,  and  similar  details.® 

Ofal. — The  removal  of  offensive  substances  and  ofial 
from  public  or  private  premises  is  accompanied  by  a  de- 
gree of  danger,  or  at  least  inconvenience  to  the  people,  and 
may  lawfully  be  regulated.  It  is  customary  to  provide 
some  public  agency  for  the  removal  of  offal  and  waste,  and 

(1)  Barthet  v.  New  Orleans,  24  Fed.  Rep.  563;  s.  c,  9  Am.  &  Eng.  C. 
C.  509. 

(2)  Lake  View  v.  Letz,  44  111.  81. 

(3)  Austin  V.  Murray,  16  Pick.  121. 

(4)  Church  v.  New  York,  5  Cow.  538 ;  Coates  v.  New  York,  7  Cow.  585. 

(5)  Bogert  v.  Indianapolis,  13  Ind.  134;  Graves  v.  Bloomington,  17 
111.  App.  476. 

14 


210  MUNICIPAL    POLICE    ORDINANCES.  [§220. 

to  prohibit  private  persons  from  removing  the  same,  either 
absolutely  or  except  on  condition  that  they  first  obtain  a 
permit  from  the  board  of  health. 

Some  efiective  agency  must  be  provided  to  do  the  work, 
or  else  the  prohibition  of  the  ordinance  could  not  be  en- 
forced against  a  person  who,  using  due  care,  removes  the 
offal  from  his  premises  himself.^  Private  individuals  may 
be  compelled  to  aid  the  officers  in  the  performance  of  their 
duty  by  providing  adequate  means  of  enabling  the  officer 
to  obtain  access  to  and  to  transport  offal  from  places  where 
it  has  accumulated.  But  they  can  not  be  directed  to  leave 
an  alley  or  roadway  over  which  the  officer  can  gain  access 
to  ash-pits  and  privies.^ 

Dead  animals.  Provision  may  be  made  by  ordinance  for 
the  prompt  removal  of  dead  animals,^  prescribing  the  mode 
and  terms  of  using  the  streets  in  their  removal,  and,  if  de- 
sirable, confining  the  duty  or  privilege  to  a  single  agency 
subject  to  express  contract.* 

This  right  extends  simply  to  the  removal  of  the  carcass. 
It  is  unlawful  to  give  a  single  person  the  right  to  remove 
and  dispose  of  the  animal.  Opportunity  should,  if  practi- 
cable, be  given  to  the  owner  to  direct  what  he  wishes  done 
with  the  animal  to  be  removed.  If  it  is  not  given,  or  if 
he  can  not  be  notified,  the  limit  of  the  corporate  power  is 
to  remove  the  animal  and  dispose  of  it  to  the  best  advan- 
tage, holding  the  yroce.eds^  less  some  reasonable  charge  for 
the  removal,  for  the  owner.^ 

Diseases.  The  care  and  prevention  of  contagious  dis- 
eases belong  within  the  province  of  health  regulations. 
"Whenever  contagion  is  feared  from  vessels  landing  at  a 
port  or  harbor  the  corporation  may  subject  all  vessels  com- 

(1)  Vandine,  Petitioner,  6  Pick.  187;  Boehm  v.  Baltimore,  61  Md. 
259. 

(2)  Waite  r.  Garston,  3  L.  R.  Q.  B.  5. 

(3)  Underwood  v.  Green,  3  Robt.  86. 

(4)  Rendering  Co.  v.  Behr,  7  Mo.  App.  345;  Morgan  v.  Cincinnati,  12 
Ohio  L.  Bull.  41. 

(5)  Rendering  Co.  v.  Behr,  77  Mo.  91 ;  Alpers  v.  Brown,  60  CaL  447. 


§  220.]  ORDINANCES    CLASSIFIED,    ETC.  211 

ing  into  port  to  reasonable  quarantine  regulations.*  It  is 
immaterial  what  the  disease  is  so  long  as  it  is  contagious.^ 
The  officers  can  not  take  quarantined  vessels  into  their 
own  possession  and  control  to  the  exclusion  of  the  owner 
or  captain ;  they  can  only  exercise  control  as  to  those  things 
that  would  tend  to  facilitate  the  spread  of  the  disease.^ 
The  right  to  detain  and  disinfect  any  kind  of  property 
ceases  as  soon  as  reasonable  disinfection  has  been  exer- 
cised, or  as  soon  as  all  appearance  of  disinfection  is  lost.^ 
If  a  contagious  disease  is  prevalent,  hospitals  and  pest- 
houses  may  be  erected  and  those  suffering  from  the  disease 
forced  to  remove  to  those  places  for  treatment.^  And  com- 
petent nurses  and  physicians  may  be  employed  at  public 
expense  to  care  for  those  who  are  confined  to  pest-houses.^ 
The  municipal  power  extends  only  to  public  hospitals;  it 
has  nothing  to  do  with  private  institutions.^ 

Miscellaneous  health  provisions.  In  a  city  of  any  size,  it 
is  lawful  to  prohibit  the  keeping  of  hogs,  except  as  neces- 
sary for  a  short  time  for  commercial  purposes,^  and  pro- 
vision may  be  made  for  abating  such  hog-pens  as  may  be 
kept  in  violation  of  an  ordinance.^  So,  it  is  lawful  under 
general  power  to  care  for  the  public  health,  to  prohibit  the 
keeping  of  more  than  two  cows  in  the  populous  districts 
of  a  city.^°  An  ordinance  may  be  enforced  which  provides 
that  all  wells  under  the  streets,  having  more  than  six 
grains  of  chlorine  to  a  gallon  of  water,  shall  be  filled  up, 
although  the  wells  are  private  property  and  dug  in  pursu- 
ance of  a  license  from  the  corporation.** 

(1)  DuBois  V.  Augusta,  Dudley,  30;    Harrison  v.  Baltimore,  1  Gill, 
264. 

(2)  Mitchell  v.  Rockland,  41  Me.  363. 

(3)  Idem. 

(4)  Sumner  v.  Philadelphia,  9  Phila.  408;  s.  c,  6  Am.  L.  T.  476. 

(5)  Aull  V.  Lexington,  18  Mo.  284. 

(6)  Labriev.  Manchester,  59  N.  H.  120. 

(7)  Bessoinies  v.  Indianapolis,  71  Ind.  189. 

(8)  Cedar  Rapids  v.  Holcomb,  68  la.  107  (15,000  inhabitants). 

(9)  Boehm  v.  Baltimore,  61  Md.  259. 

(10)  In  re  Lineman  (Cal.  1887),  13  Pac.  Rep.  170. 

(11)  Ferrenbach  v.  Turner,  86  Mo.  416. 


212  MUNICIPAL   POLICE    ORDINANCES.  [§  222. 

Penalties  for  breaches  of  the  peace  can  not  be  imposed 
under  power  to  regulate  the  public  health  and  comfort.^ 

§  221.  Fire. — The  power  to  take  all  measures  necessary 
to  prevent  tires  and  their  spread  is  of  prime  importance  ta 
the  citizens  of  every  community.  It  belongs  to  that  class 
of  powers  exercised  for  self-preservation,  which  are  in- 
herent in  every  municipality,  and  which  do  not  need  the 
authorization  of  an  express  grant.  Every  precaution  pos- 
sible should  be  taken  to  prevent  the  destruction  to  prop- 
erty and  the  danger  to  life  incident  to  conflagration,  and 
for  this  purpose  as  great  a  degree  of  interference  with 
personal  rights  is  permitted  as  under  any  other  power. 
Private  interests  are  entirely  subservient  to  the  public 
safety. 

§  222.  Fire  limits. — The  first  preventive  step  taken  ia 
usually  to  prescribe  fire  limits ;  that  is,  territorial  limits 
within  which  it  shall  be  unlawful  to  erect  certain  classes 
of  buildings.  This  is  always  permissible.^  Owing  to  the 
extreme  importance  of  such  regulations,  and  their  vital  in- 
terest to  the  community,  one  would  hardly  think  that  the 
power  of  erecting  fire  limits  in  a  thickly  built  up  district 
would  ever  be  denied ;  still  it  is  surprising  to  note  that 
two  courts  have  insisted  that  express  authority  must  exist 
for  such  regulations.  It  seems  that  their  regard  for  per- 
sonal rights  has  been  carried  to  an  unwarranted  extent  in 
view  of  the  importance  of  preventing  the  destruction  of 
property  by  fire,  and  great  as  our  regard  must  be  for  their 
reasoning  and  conclusions,  the  rule  above  enunciated  seems 
to  be  the  true  one,  and  the  great  majority  of  the  well  ad- 
vised decisions  tends  to  its  support.  Thus,  it  has  been  held 
in  Texas  that  there  must  be  express  authority  to  create  fire 
limits    and   to   prohibit   under   penalties  the  erection  of 

(1)  Kaleigh  v.  Dougherty,  3  Humph.  11. 

(2)  King  V.  Davenport,  98  111.  305;  Hine  v.  New  Haven,  41  Conn.  478  j 
Alexander  o.  Council,  54  Miss.  659;  Baumgartner  v.  Hasty,  100  Ind. 
575;  Monroe  v.  HoflFman,  29  La.  Ann.  651  ;  Charleston  v.  Reed,  27  W. 
Va.  681 ;     Wadleigh  v.  Gilman,  12  Me.  403. 


§  223]  ORDINANCES    CLASSIFIED,    ETC.  213 

wooden  buildings  therein.^  A  recent  Pennsylvania  case 
holds  that  such  an  ordinance  must  rest  either  upon  an  ex- 
press grant  or  upon  an  urgent  necessity.^  One  would  think 
that  the  necessity  would  be  urgent  in  every  case.  If  the 
legislature  has  attempted  to  define  the  powers  that  may  be 
exercised  in  regard  to  preventing  fire,  the  corporation  will 
be  bound  by  the  limits  of  the  definition,  although  it  may 
thereby  be  hindered  from  exercising  as  much  power  as  it 
could  have  done  had  there  been  no  grant  at  all.  Under 
power  to  regulate  the  materials,  construction,  alteration, 
and  use  of  dwellings,  a  permit  can  not  be  required  to  build 
any  building  except  a  dwelling.' 

§  223.  Extent  of  the  power.— The  extent  to  which  the 
power  may  be  exercised  is  greatly  in  dispute.  It  is  claimed 
that  the  removal  of  structures  existing  at  the  time  of  the 
passage  of  the  ordinance  would  be  giving  a  retroactive  ef- 
fect to  the  ordinance,  and  would  be  in  excess  of  the  power  ; 
and  this  position  seems  well  taken,  unless  some  existing 
building  is  in  bad  condition,  and  by  reason  of  the  use  to 
which  it  is  put  becomes  thereby  extra-dangerous;*  or  in 
case  an  old  structure  were  partially  destroyed  by  tire.^  It 
is  proper  to  prohibit  the  erection  of  wooden  buildings 
within  fire  limits,  and  to  provide  for  the  removal  by  police 
authorities  of  buildings  thereafter  built  in  defiance  of  the 
law.^  And  the  ordinance  would  be  applicable  even  in  cases 
where  the  foundation  of  a  building  of  the  prohibited  class 
is  already  laid  and  the  plans  and  contracts  completed.  The 
individual  must  suffer  for  the  public  good.'''  As  a  total 
prohibition    of   such  erection  might  sometimes  work  in- 

(1)  Pye  V.  Peterson,  45  Tex.  312. 

(2)  Kneedler  v.  Norristown,  100  Pa.  St.  368. 

(3)  Newton  v.  Belger  (Mass.)  10  East.  Rep.  77.  Contra,  Ex  parte  Fiske 
<Cal.  1887),  13  Pac.  Rep.  310. 

(4)  Green  v.  Lake,  60  Miss.  451. 

(5)  Brady  v.  Insurance  Co.,  11  Mich.  425. 

(6)  Wadleigh  v.  Gilman,  12  Me.  403;  King  v.  Davenport,  98  111.  305; 
Monroe  v.  HoflFman,  29  La.  Ann.  651. 

(7)  Salena  v.  Maynes,  123  Mass.  372;  Knoxville  v.  Bird,  12  B.  J. 
Lea,  121. 


214  MUNICIPAL    POLICE   ORDINANCES.  [§  223. 

equalities  of  burdens,  it  is  proper  to  allow  their  erection 
under  license  from  the  municipality,  discretion  as  to  grant- 
ing the  license  being  considered  a  sufficient  safeguard,^ 
and  a  reasonable  fee  may  be  charged  for  issuing  the 
license.^  So,  it  is  proper  to  compel  persons  about  to  erect 
any  kind  of  building  to  give  the  authorities  notice  of  their 
intention  and  file  plans  of  the  proposed  structure  f  but  such 
regulations  would  not  apply  to  mere  temporary  structures.* 
Where  the  power  of  removal  is  defined  by  the  charter,  the 
power  should  be  construed  in  favor  of  the  owner  of  the 
building.*  An  ordinance  passed  prohibiting  the  erection 
of  any  building  other  than  of  brick,  stone,  iron,  or  other  in- 
combustible material,  would  not  be  sustained  under  a  power 
to  prevent  the  erection  of  wooden  buildings.^  An  ordinance 
provision  that  the  lowej'  story  of  every  bath  room  must  be 
constructed  of  non-combustibles  does  not  apply  to  bath 
houses  which  begin  on  the  second  story  of  the  building 
which  they  occupy.^  The  making  of  ordinary  repairs  to 
existing  buildings  can  not  be  prohibited.  They  must  amount 
to  additions  or  material  alterations.^  JReshingling  a  build- 
ing, for  example,  is  an  ordinary  repair.®  The  ordinance 
usually  prohibits  the  erection  of  certain  classes  of  buildings 
within  defined  limits.  An  enlargement  and  elevation  of  a 
building  so  as  to  change  its  character  is  an  erection  within 
the  meaning  of  the  term.^''  Changing,  by  repairs,  a  joiner's 
shop  into  a  dwelling-house  is  not  an  erection  ;^^  nor  is  the 

(1)  Welch  V.   Hotchkiss,   39   Conn.   141;    Hine  v.    New    Haven,  40 
Conn.  478. 

(2)  Welch  V.  Hotchkiss,  supra. 

(3)  Hall  V.  Nixon,  L.  R.  10  Q.  B.  152;  s.  c,  12  Moak  Eng.  R.  218. 

(4)  Fielding  v.  Commissioners,  3  C.  P.  Div.  272;  s.  c,  30  Moak  Eng. 
R.  155. 

(5)  Louisville  v.  Webster,  lOS  111.  414. 

(6)  Attorney-General  v.  Campbell,  19  Grant's  Ch.  (U.  C.)  299. 

(7)  Bowers  u.  Coultson,  II  Phila.  182. 

(8)  Brown  v.  Hunn,  27  Conn.  332;  Stewart  v.  Commonwealth,  10 
Watts,  307;  Brady  v.  Insurance  Co.,  11  Mich.  425. 

(9)  Regina  v.  Howard,  4  Ont.  377. 

(10)  Douglass  V.  Commonwealth,  2  Rawle,  262. 

(11)  Booth  V.  State,  4  Conn.  65. 


§  223.]  ORDINANCES    CLASSIFIED,  ETC.  215 

building  of  an  addition  of  the  same  height  and  slope  of 
roof  onto  the  rear  of  a  structure  having  only  one  story .^ 
The  corporation  may  prohibit  the  removal  of  wooden  build- 
ings from  one  site  to  another.  Such  a  removal  can  not  be 
prevented  under  a  prohibition  of  erecting  wooden  buildings.^ 
An  ordinance  prohibiting  the  erection  of  wooden  buildings 
"having  in  them"  a  chimney,  fire-place,  or  stove,  is  not 
violated  by  an  outside  chimney.  This  is,  however,  a  very 
extreme  stretch  of  the  rules  of  construction.^ 

Reasonable  time  should  be  given  to  the  owner  of  the  un- 
lawful structure  to  remove  it  or  alter  it  so  as  to  comply 
with  the  requirements,  before  a  removal  is  made  by  the 
corporate  authorities,*  unless  the  necessity  is  urgent,  in 
which  case  it  may  be  removed  without  notice  or  any  form 
of  judicial  proceeding.' 

Regulations  of  this  nature  are  not  restricted  to  the  erec- 
tion of  buildings.  It  would  also  be  reasonable  to  prohibit 
the  erection  of  wooden  fences  or  sidewalks.^  Of  the  same 
nature  are  ordinances  prohiting  the  storage  of  dangerous 
and  inflammable  subtances  in  any  considerable  quantity ; 
for  instance,  the  keeping  of  more  than  five  tons  of  straw, 
unless  in  a  fire-proof  inclosure.^ 

The  proper  cleaning  of  chimneys  may  be  made  compul- 
sory, but  an  ordinance  would  be  void  which  attempts  to 
restrict  the  right  of  cleaning  chimneys  to  an  official  in- 
spector.^ 

It  can  not  be  expected  that  fires  can  be  controlled  unless 
adequate  means  are  at  hand  to  check  their  progress. 
Hence  it  is  essential  that  every  municipality  be  provided 

(1)  Tuttle  V.  State,  4  Conn.  68  (contrary  to  rule). 

(2)  City  V.  Lenze,  27  O.  S.  383.  Contra,  Wadleigh  v.  Gilman,  12 
Me.  403. 

(3)  Daggett  v.  State,  4  Conn.  60. 

(4)  Louisville  v.  Webster,  108  111.  414;  Hine  v.  New  Haven,  40 
Conn,  478. 

(5)  McKibben  v.  Fort  Smith,  35  Ark.  352;  King  v.  Davenport,  98 
111.  305. 

(6)  Macon  v.  Patty,  57  Miss.  378. 

(7)  Clark  v.  South  Bend,  85  Ind.  276. 

(8)  Regina  v.  Johnston,  38  U.  C  Q.  B.  549. 


216  MUNICIPAL   POLICE    ORDINANCES.  [§    224. 

with  fire  engines,  and  no  express  power  is  needed  to  author- 
ize their  purchase.^ 

Reservoirs  for  the  storage  of  a  sufficient  supply  of  water 
are  also  necessary  to  an  effective  fire  department,  and  may 
be  constructed  without  express  power.^  Under  power  to 
contract  with  individuals  for  water,  machinery  and  pipes,  it 
is  not  lawful  to  purchase  a  site  on  which  to  locate  and  erect 
water-works.' 

§  224.  Streets. — Highways  are  primarily  under  the  con- 
trol of  the  state,  but  as  soon  as  a  municipal  corporation  is 
organized,  those  highways  or  portions  of  highways  which 
lie  within  its  boundaries  are  subject  to  its  powers  of  police 
regulation.  These  powers  extend  to  the  making  of  repairs 
and  improvements,  to  the  freeing  them  from  obstruction 
and  to  preventing  their  improper  use,  and  these  ends  may 
be  accomplished  by  the  passage  and  enforcement  of  suitable 
ordinances.  The  precise  extent  of  this  power  depends  on 
the  terms  of  the  charter  or  enabling  statute.  The  author- 
ity of  the  municipality  supplants  that  of  the  state,  county, 
or  township  only  as  regards  police  supervision,  unless  the 
contrary  is  indicated  by  some  express  grant.  It  has  been 
held  in  Alabama  that  the  creation  of  an  incorporated  town 
ipse  facto  gives  it  exclusive  jurisdiction  over  the  public 
roads  and  highways  within  its  limits,  and  even  the  right  to 
abolish  them  entirely.*  But,  as  a  rule,  no  power  to  vacate 
streets  is  thus  conferred  by  implication.  And  when 
expressly  granted,  such  a  power  must  be  strictly  construed. 
Thus,  under  power  to  open  and  vacate  streets,  it  is  unlawful 
to  grant  the  use  of  a  street  to  private  persons  for  a  period  of 
years,  then  to  revert  to  the  public.^  But  under  general 
police  powers,  portions  of  a  street  or  park  which   are  not 

(1)  Van  Sicklen  v.  Burlington,  27  Vt.  70;  Green  v.  Cape  May,  41  N. 
J.  L.  45 ;  Allen  v.  Taunton,  1 9  Pick.  485  ;  Mayor  v.  Eumsey,  63  Ala. 
352;  Desmond  v.  Jefferson,  10  Fed.  Kep.  483. 

(2)  Hardy  v.  Waltham,  3  Mete.  163. 

(3)  People  V.  McClintock,  45  Cal.  11. 

(4)  McCain  v.  State,  62  Ala.  138. 

(5)  Glasgow  V.  St  Louis,  87  Mo.  678. 


§  224.]  ORDINANCES    CLASSIFIED,   ETC.  217 

needed  or  used  for  travel  may  be  sodded  and  set  apart  to 
beautify  the  general  appearance.^  And,  in  general,  the 
width  of  streets  may  be  regulated  under  power  to  regulate 
them.^  Under  power  "  to  alter  streets,"  it  is  held  to  be 
unlawful  to  attempt  to  diminish  their  width  by  releasing  a 
portion  thereof  to  the  adjoining  owners.^  Free  bridges  to 
connect  one  street  with  another,  or  a  street  with  a  highway 
outside  of  the  city  limits,  may  be  constructed  under  police 
powers.  Such  power  as  "  to  open"  or  "  to  extend  "  streets 
has  been  construed  to  mean  "  to  construct,  establish,  and 
lay  out."*  Power  to  construct  streets  must  be  reasonably 
exercised  with  due  regard  to  private  rights.  Unnecessary 
harm  should  not  be  done.  Thus,  it  would  be  improper  to 
establish  a  new  street  longitudinally  over  the  right  of  way 
of  a  railroad.^  But  there  is  no  objection  to  constructing  a 
street  across  a  railroad.* 

For  all  purposes  of  police  regulation  it  matters  not 
whether  the  fee  to  the  streets  is  in  the  public,  in  the  adja- 
cent owners,  or  in  a  company  organized  for  the  purpose  of 
establishing  the  road.'''  The  question  of  ownership  is  only 
important,  as  will  be  seen  later,  in  considering  the  right  of 
the  municipality  to  devote  its  streets  to  extraordinary 
uses.  So  long  as  the  street  is  a  public  and  not  a  private 
one  full  powers  of  police  regulation  may  be  exercised.^ 

An  alley  is  not  a  street,  the  word  alley  meaning  a  pas- 
sage-way on  private  property,  or  a  public  way  too  narrow 
to  admit  vehicles.^  A  street,  within  the  meaning  of  stat- 
utes and  ordinances,  includes  every  thing  up  to  the  fences  or 

(1)  Murphy  v.  Pearce,  111.   Jan.  25,  1887. 

(2)  State  V.  Morristown,  33  N.  J.  57.  Cuntra,  State  v.  Mobile,  5  Port. 
279. 

(3)  Asylum  v.  Troy,  76  N.  Y.  108. 

(4)  Hannibal  v.  Railroad  Co.,  49  Mo.  480;  Sugar  Co.  v.  Jersey  City 
26  N.  J.  Eq  247. 

(5)  Railway  Co.  v.  Faribault,  23  Minn.  167;  Railroad  Co.  v.  Long 
Branch,  39  N.  J.  28. 

(6)  Hannibal  v.  Winchell,  57  Mo.  172. 

(7)  State  V.  New  Brunswick,  30  N.  J.  395. 

(8)  Quinn  v.  Paterson,  28  N.  J.  35. 

(9)  Paul  V.  Detroit,  32  Mich.  108. 


218  MUNICIPAL   POLICE   ORDINANCES,  [§    226. 

walls  of  the  private  premises  adjoining  it.  It  includes 
gutters,  curbstones,  and  sidewalks,  the  air  over  the  street 
and  the  earth  beneath  it.^ 

§  225.  Care  of  the  streets. — The  extent  of  municipal 
police  power  over  streets  can  be  summed  up  by  saying  that 
it  includes  everything  necessary  to  render  them  easy  of  ac- 
cess and  use  to  the  public,  and  to  preserve  their  usefulness 
unimpaired.  Their  surface  may  be  made  as  convenient  and 
safe  as  possible,  they  may  be  kept  free  from  obstructions, 
and  they  may  be  artificially  lighted  at  night.^  For  the  pur- 
pose of  better  supervision,  surveys  may  be  made  of  the 
streets  and  squares  and  maps  drawn  of  the  city.'  The  ex- 
tent of  municipal  control  over  the  streets  is  usually  de- 
fined by  statute  or  the  charter,  and,  in  such  case,  the  power 
is  limited  to  that  which  is  granted  or  necessary  to  efiect- 
uate  that  which  is  granted. 

§  226.  Grading. — In  populous  places  the  streets  "  need 
to  be  graded  and  brought  to  a  level;  and,  therefore,  the 
public  or  municipal  authorities  may  not  only  change  the 
surface,  but  cut  down  trees,  dig  up  the  earth,  and  may  use 
it  in  improving  the  street,  or  elsewhere,  and  may  make 
culverts,  drains,  and  sewers  upon  or  under  the  surface. 
Whether  the  municipal  corporation  holds  the  fee  of  the 
street  or  not,  the  better  doctrine  is  that  the  municipal  au- 
thorities may,  under  the  usual  powers  given  them,  do  all 
acta  appropriate  or  incidental  to  the  beneficial  use  of  the 
street  by  the  public."  * 

Power  to  grade  streets  does  not  mean  simply  to  level 
down  the  surface  inequalities,  but  it  extends  to  establishing 

(1)  Wallace  v.  New  York,  2  Hilt.  440;  In  re  Burmeister,  76  N.  Y. 
174. 

(2)  As  to  lighting,  see  Nelson  v.  La  Porte,  33  Ind.  258;  Gaslight 
Co.  V.  Middleton,  59  N.  Y.  228;  New  Orleans  v.  Clark,  95  U.  S.  644  ; 
Garrison  v.  Chicago,  7  Biss.  480;  Horst  v.  Moses,  48  Ala.  129. 

(3)  People  V.  Flagg,  17  N.  Y.  584;  Randall  v.  Van  Vechten,  19 
Johns.  60. 

(4)  Cincinnati  v.  White,  6  Pet.  431;  Dill.  Mun.  Corp.,  §  688. 


§    227.]  ORDINANCES    CLASSIFIED,    ETC.  219 

the  grade/  and  implies  power  to  materially  raise  or  lower 
portions  of  a  street  in  order  to  facilitate  traffic.'*  Power  to 
pave  includes  power  to  grade,  because  it  would  be  imprac- 
ticable to  pave  a  street  stably  without  prior  grading.*  In 
grading,  the  municipality  may  use  any  surplus  soil  in  grad- 
ing any  other  street  or  the  same  street,  and  if  not  needed 
for  such  purpose,  could  dispose  of  it  to  the  best  advantage 
to  third  parties,  unless  the  fee  of  the  street  is  in  the  adjoin- 
ing owner,  who  claims  and  removes  such  surplus.*  But 
soil  can  not  be  removed  from  one  street  to  be  used  on  an- 
other except  in  the  execution  of  an  ordinance  or  order  for 
grading  the  street  from  which  the  soil  is  taken  ^ 

The  ordinance  should  specify,  if  possible,  the  general 
measures  to  be  adopted  when  the  cost  is  to  be  assessed  on 
abutting  owners,'"  The  power  to  grade  streets  is  continu- 
ing, but  any  special  damage  suffered  by  an  adjoining  owner 
who  has  erected  buildings  in  conformity  to  an  established 
grade,  by  reason  of  a  considerable  change  of  grade,  can  be 
collected  from  the  city.^ 

§227.  Paving. — The  word  "pavement"  is  used  in  a 
conventional  sense  to  express  any  thing  that  answers  the 
purpose  of  a  substantial  covering  for  the  surface  of  a  street. 

(1)  Himmelmann  v  Hoadley,  44  Cal.  213. 

(2)  Karst  v.  Railway  Co.,  22  Minn.  118;  Delphi  v.  Evans,  36  Ind.  90; 
State  V.  West  Orange,  40  N.  J.  122;  Lewis  v.  Toronto,  39  U.  C.  Q.  b! 
343. 

(3)  State  V.  Elizabeth,  30  N.  J.  365;  Williams  v.  Detroit,  2  Mich. 
560;  In  re  Belmont,  12  Hun,  558. 

(4)  Smith  V.  Washington,  20  How.  135;  Griswold  v.  Bay  City,  35 
Mich.  452;  Denniston  v.  Clark,  125  Mass.  216;  Hovey  v.  Mayo,  43  Me. 
322.      Contra,  Smith  v.  Rome,  19  Ga.  89. 

(5)  Delphi  v.  Evans,  36  Ind.  90. 

(6)  Railway  Co.  v.  Jacksonville,  114  111.  562. 

(7)  Karst  v.  Railway  Co.,  22  Minn.  118;  Smith  v.  Washington,  20 
How.  135;  O'Connor  u.  Pittsburg,  18  Pa.  St.  187;  Macy  v.  Indianapolis 
17  Ind.  267;  Hoflfman  v.  St.  Louis,  15  Mo.  651;  Markham  v.  Mayor,  23 
Ga.  402;  New  Haven  v.  Sargent,  38  Conn.  50;  Delphi  v.  Evans,  35  Ind. 
90;  McCormick  v.  Patchen,  53  Mo.  33;  Gall  v.  Cincinnati,  18  O.  S 
663;  Plum  V.  Canal  Co.,  2  Stockt.  256;  Dunham  v.  Hyde  Park,  75  111 
371. 


220  MUNICIPAL    POLICE    ORDINANCES.  [§  227. 

It  is  not  limited  to  any  particular  material.  Neither  is  it 
"limited  to  uniformly  arranged  masses  of  solid  material, 
or  blocks  of  wood,  brick  or  stone,  but  it  may  be  as  well 
formed  of  pebbles,  or  gravel,  or  other  hard  substances 
which  will  make  a  compact,  even,  hard  way  or  floor."  ^ 
Power  to  repair  is  held  not  to  include  macadamizing." 

Power  to  pave  includes  the  power  to  furnish  and  do  all 
that  is  necessary,  usual  or  fit  for  paving.  It  includes  power 
to  grade,  to  provide  gutters  and  curbstones,  trimmings,  and 
even  sidewalks.^ 

Power  to  pave  is  not  at  all  restricted  because  a  railroad, 
liowever  created,  runs  along  or  over  the  surface  of  the 
street.*  Paving  must  extend  uninterruptedly  along  the 
street  within  the  limits  determined  upon  by  the  council, 
and  includes,  of  necessity,  cross-walks,  street  intersections, 
and  the  like.' 

Power  to  repair  does  not  include  power  to  pave  orig- 
inally.^ 

The  power  to  pave,  like  that  of  grading,  is  continuing 
and  is  not  exhausted  by  having  been  once  exercised.^  In 
Pennsylvania,  alone,  the  opposite  rule  obtains.* 

(1)  Burnham  v.  Chicago,  24  111.  496;  Warren  v.  Henly,  31  la.  31; 
In  re  Phillips,  60  N.  Y.  16;  Railrpad  Co.  v.  Mt.  Pleasant,  12  la.  112. 

(2)  Watson  v.  Passaic,  46  N.  J.  124. 

(3)  Dill.  Mun.  Corp.,  §  797;  Schenley  v.  Commonwealth,  36  Pa.  St, 
29;  Steckert  v.  East  Saginaw.  22  Mich.  104;  Dean  v.  Borchenius,  30 
Wis.  236  ;  McNamara  v.  Estes,  22  la.  246 ;  Williams  v.  Detroit,  2  Mich. 
560;  People  v.  Brooklyn,  21  Barb.  484;  O'Leary  v.  Sloo,  7  La.  Ann.  25; 
Railroad  Co.  v.  Mt.  Pleasant,  12  la.  112;  State  v.  Elizabeth,  30  N.  J. 
365 ;  People  v.  Brooklyn,  21  Barb.  484. 

(4)  State  V.  Atlantic  City,  34  N.  J.  99. 

(5)  Powell  V.  St.  Joseph,  31  Mo.  347 ;  Creighton  v.  Scott,  14  0.  S. 
438 ;  In  re  Burke,  62  N.  Y.  224 ;  In  re  Phillips,  60  N.  Y.  16  ;  Williams 
V.  Detroit,  2  Mich.  560 ;  Lawrence  v.  Killam,  1 1  Kan.  499 ;  In  re  Eager, 
46  N.  Y.  100;  Hines  w.  Lockport,  41  How.  Pr.  435;  State  v.  Elizabeth, 
30  N.  J.  365. 

(6)  State  V.  Jersey  City,  28  N.  J.  536. 

(7)  Morleyv.  Carpenter,  22  Mo.  App.  640;  Williams  v.  Detroit,  2 
Mich.  560;  McCormick  v.  Patchins,  53  Mo.  33,  s.  c,  14  Am.  Rep.  440; 
Gurner  v.  Chicago,  40  111.  165  ;  Municipality  v.  Dunn,  10  La.  Ann.  57. 

(8)  Hammett  V.  Philadelphia,  65  Pa.  St.  148;  Wistarv.  Philadelphia, 


§  228.]  ORDINANCES    CLASSIFIED,  ETC.  221 

§  228.  Sidewalks. — Authority  to  pave  includes  author- 
ity to  construct  sidewalks.^  It  is  held  in  California, 
thoujrh,  that  an  ordinance  or  resolution  of  intention  to 
raacudamize  and  curb  does  not  include  work  on  sidewalks.^ 
But  sidewalks  are  part  of  the  street  and  any  measure  ap- 
plicable to  the  street  should  also  be  held  to  include  the 
sidewalks.  The  mere  fact  that  passage  is  facilitated  by 
using  one  ,part  of  the  street  for  vehicles  and  another  for 
foot  passengers  should  not  lead  to  any  material  distinction 
in  the  character  of  the  two  parts.^  This  respective  ar- 
rangement being  purely  conventional,  it  is  not  at  all  neces- 
sary that  a  sidewalk  be  constructed  on  each  side  of  a  street, 
and  locating  a  walk  on  one  side  only,  under  power  to  im- 
prove the  street,  is  permissible.* 

Sidewalks  may  include  gutters  as  a  matter  of  necessity.' 
But  it  has  been  held  not  to  include  cross-walks,^  though 
we  can  see  no  reason  for  the  distinction,  except  the  acci- 
dental form  of  the  word.  With  reference  to  the  use  to 
which  walks  are  put,  they  could  just  as  lawfully  be 
constructed  along  the  center  of  the  street  as  along  the 
sides.  As  their  obvious  purpose  is  to  accommodate  foot 
passengers,  and  as  people  are  obliged  to  cross  the  streets 
frequently  in  a  thickly  peopled  community,  it  is  difficult 
to  see  why  cross-walks  are  not  a  very  important  accom- 
modation, and  why  the  term  "  walks  "  or  "  sidewalks  " 
should  not  be  construed  to  include  them. 

It  is  upon  the  same  principle  of  so  arranging  the  streets 
as  best  to  accommodate  the  public,  that  councils,  in  the  ex- 
ercise of  regulatory  powers  over  streets,  and  aided  by  their 
superior  knowledge  of  the  relative  needs  of  the  various 

80  Pa.  St.  112.     A  petition  from  the  property  owners  is  a  condition 
precedent  to  repaying  in  New  York.     In  re  Garvey,  77  N.  Y.  523. 

(1)  Warren  v.  Henly,  31  la.  31 ;  O'Leary  v.  Sloo,  7  La.  Ann.  25 ;  Rail- 
road Co.  V.  Spearman,  12  la.  112. 

(2)  Dyer  v.  Chase,  52  Cal.  440;  Himmelmann  v.  Satterlee,  50  Cal.  6&. 

(3)  Woodruff  V.  Stewart,  63  Ala.  212. 

(4)  Christophers.  Portage,  12  Wis.  562. 

(5)  Robins  v.  New  Brunswick,  44  N.  J.  116. 

(6)  Pequignotv.  Detroit,  16  Fed.  Rep.  211. 


222  MUNICIPAL   POLICE    ORDINANCES.  [§  229. 

modes  of  travel,  are  allowed  to  determine  the  relative 
width  of  the  street  and  walk,  namely,  the  space  to  be  ap- 
portioned and  occupied  by  each.^ 

The  adjoining  owner  can  not,  however,  be  heard  to  com- 
plain if  the  council  deems  best  to  exclude  the  sidewalks 
from  the  operation  of  an  ordinance  ordering  a  pavement 
to  be  laid.^ 

Unless  some  statutory  or  charter  provision  permits  the 
burden  of  constructing  sidewalks,  paving  and  liko  street 
improvements  to  be  assessed  upon  the  adjacent  owners,  or 
those  benefited,  the  burden  rests  upon  the  corporation  at 
large  both  to  construct  and  to  repair.  When  this  burden 
is  shifted  by  law  upon  the  adjacent  owners,  it  is  permissi- 
ble, because  the  benefits  of  street  improvement  are  not 
only  greater  to  that  class,  out  more  capable  of  equitable 
apportionment,  than  are  the  benefits  arising  from  other 
classes  of  municipal  regulation  involving  expense  and  out- 
lay. It  would  be  just  as  competent  for  the  legislature  to 
impose  the  entire  expense  incident  to  the  exercise  of  any 
police  power  upon  those  benefited  thereby,  if  it  were  pos- 
sible to  locate  the  beitefit.  A  similar  situation  is  the  de- 
tail of  a  police  officer  to  watch  the  property  or  premises  of 
an  individual,  when  his  particular  property  is  extraordi- 
narily exposed  to  danger  by  his  own  act.  The  municipality 
would  have  a  perfect  right  to  collect  of  him  a  sufficient 
amount  to  meet  the  additional  expense,  in  spite  of  the 
fact  that  he  is  entitled  to  general  police  protection.  The 
burden  of  street  improvements  is  not,  however,  to  be  en- 
tailed upon  the  adjoining  owners,  without  express  author- 
ity, for  the  general  public  as  well  as  they  derive  a  degree 
of  benefit.^ 

§  229.  Protection  of  streets. — Whenever  the  control 
of  the  streets  is  thus  delegated  to  the  local  government, 
they  become,  in  one  sense,  the  property  of  the  corporation^ 
and  the  duty  would  be  incumbent  upon  the  corporatign  to 

(1)  State  V.  Morristown,  33  N.  J.  58. 

(2)  Moran  v.  Lindell,  52  Mo.  229. 

(3)  Chicago  v.  Crosby,  111  111.  538. 


§    229.]  ORDINANCES    CLASSIFIED,    ETC.  223 

protect  and  guard  them  from  injury.  This  duty  does  not 
rest  upon  express  authority,  but  is  to  be  exercised  in  pur- 
suance of  the  general  police  power.^  The  pavements  of  a 
city  are  constructed  with  a  view  to  ordinary  and  careful 
usage,  and  as  the  transportation  of  very  heavy  loads  upon 
vehicles  having  tires  of  the  ordinary  width  migiit  easily 
displace,  crush,  or  otherwise  injure  the  materials  used  in 
paving,  it  is  proper  to  prescribe  the  width  of  tires  that 
must  be  used  on  vehicles  heavily  laden,  or  to  prescribe 
certain  streets  over  which  heavy  burdens,  except  in  cases 
of  necessity,  must  be  conveyed.  As  mere  regulations  of 
the  manner  of  using  the  streets,  such  ordinances  are  valid. 
The  same  object  could  be  lawfully  attained  by  demanding 
a  license  from  those  using  the  streets  for  the  transportation 
of  heavy  loads.^ 

The  trees  that  grow  along  the  line  of  a  public  street 
are  likewise  within  the  regulatory  powers  of  municipal  cor- 
porations. If  their  roots  tend  to  cause  inequalities  or 
breaches  in  the  pavement  under  which  they  grow  they  may 
be  removed.  Eut  unless  injurious  to  the  surface  of  the 
street,  trees  are  to  be  protected.  When  the  street  has  been 
unreservedly  dedicated  to  the  public,  the  trees  become  pub- 
lic property,  but  they  can  not  for  that  reason  be  cut  down 
by  the  supervisor  of  streets.^  And  when  the  adjacent 
owners  retain  the  fee  in  the  streets  the  corporation  has  no 
right  to  destroy  the  trees,  unless  they  grow  within  the 
street,  or  so  as  to  obstruct  traffic*  It  is  even  held,  in  that 
case,  Ihat  an  ordinance  punishing  injuries  to,  or  the 
removal  of,  trees  on  the  public  streets,  would  have  no 
application  to  the  owner  of  the  fee.^  But  the  better  rule 
seems  to  be  that  the  municipality  has  a  right  to  protect 

(1)  Dill.  Mun.  Corp.,  §  681;  Korah  v.  Ottawa,  32  111.  121;  Hooksett 
V.  Amoskeag  Co.,  44  N,  H.  105. 

(2)  Nagle  v.  Augusta,  5  Ga.  546;  Brooklyn  v.  Breslin,  57  N.  Y.  591; 
Gartside  v.  East  St.  Louis,  43  111.  47. 

(3)  McCarthy  v.  Boston,  135  Mass.  197. 

(4)  Bliss  V.  Ball,  99  Mass.  597;  White  v.  Godfrey,  97  Mass.  472; 
Tain  tor  v.  Morristown,  19  N.  J.  Eq.  46;  Cross  v.  Morristown,  18  N.  J. 
Eq.  313;  Bills  v.  Belknap,  36  la.  583;  Everett  v.  Council  Bl-uffs,  46  la.  66. 

(5)  Lancaster  v.  Richardson,  4  Lans,  136. 


224  MUNICIPAL    POLICE    ORDINANCES.  [§  231. 

such  trees  from  injury,  even  as  against  the  owner.  Tlius 
the  adjoining  owner  would  not  be  exempt  from  the  opera- 
tion of  an  ordinance,  which  prohibits  the  hitching  of 
horses  to  shade  trees.^ 

§  230.  Obstructions. — Among  other  duties  relative  to 
the  streets,  that  are  imposed  upon  municipal  corporations, 
is  that  of  preventing  any  obstruction  of  the  right  of  pas- 
sage. As  the  power  to  remove  obstructions  extends  only 
to  clear  cases,^  and  as  the  decision  of  the  council  or  min- 
isterial officers  is  subject  to  review  by  the  courts,  the  ques- 
tion arises,  what  is  an  obstructioTi,  It  may  be  defined  aa 
any  thing  which,  without  reasonable  necessity,  impedes  the 
use  of  the  streets  for  lawful  purposes.  We  proceed  to 
consider  the  main  adjudications  as  to  what  the  council  may 
prohibit  as  coming  within  the  definition.  In  the  first, 
place,  if  a  reasonable  necessity  for  the  obstruction  exists  it 
is  lawful,  unless  per  se  a  nuisance. 

§  231.  Example  of  lawful  obstructions. — In  an  early 
and  often  cited  case,^  the  general  principle  is  thus  admira- 
bly stated:  "!N^ecessity  justifies  actions  which  would  other- 
wise be  nuisances ;  this  necessity  need  not  be  absolute  ;  it 
is  enough  if  it  be  reasonable.  No  man  has  a  right  to 
throw  wood  or  stones  into  the  street  at  pleasure;  but 
inasmuch  as  fuel  is  necessary,  a  man  may  throw  wood  into 
the  -street  for  the  purpose  of  having  it  carried  to  his  hours, 
and  it  may  lie  there  a  reasonable  time.  So,  because. build- 
ing is  necessary,  stones,  brick,  lime,  sand,  and  other  ma- 
terials may  be  placed  in  the  street,  provided  it  be  done  in 
the  most  convenient  manner."* 

Streets  may  be  obstructed  by  building  materials,  if  lack 
of   room  elsewhere  renders  it  necessary,  but  the  occupa- 

(1)  Baker  v.  Normal,  81  111.  108. 

(2)  State  V.  Jersey  City,  34  N.  J.  31. 

(3)  Commonwealth  v.  Passmore,  1  Sarg.  &  R.  217. 

(4)  Dill.  Mun.  Corp,  §  730;  Commonwealth  v.  Passmore,  is  cited 
with  approval  in  Clark  v.  Fry,  8  0.  S.  358;  People  v.  Cunningham,  1 
Denio,  524;  St.  John  v.  New  York,  3  Bosw.  483. 


§   232.]  ORDINANCES   CLASSIFIED,   ETC.  225 

tion  must  not  be  unreasonably  prolonged.  An  ordinance 
is  reasonable  which  allows  one-third  of  the  street  to  be 
thus  occupied.^  Moving  buildings  in  proper  streets  and 
with  expedition  and  care  is  not  an  unreasonable  obstruc- 
tion.'' 

As  many  residences  and  business  houses  in  crowded 
parts  of  the  city  have  no  rear  ingress,  every  thing  taken 
into  them'must  be  unloaded  and  transferred  in  front  and 
across  the  sidewalk.  Mere  temporary  obstructions,  neces- 
sary in  the  unloading  of  goods,  are  lawful,  but  all  reason- 
able haste  must  be  made,  and  the  public  inconvenienced  as 
little  as  possible.^  . 

As  these  lawful  obstructions  are  easily  allowed  to  become 
unlawful,  by  negligence,  it  is  competent  for  municipalities 
to  regulate  them.  They  may  pass  ordinances  defining  the 
exact  extent  to  which  building  materials  may  occupy  the 
streets,  regulating  the  length  of  time,  the  space  used  and 
even  the  height  of  the  piles  of  materials.  Or,  a  license 
may  be  required  as  a  condition  precedent  to  the  right  to  so 
obstruct  the  streets.*  Such  a  license  maybe  revoked  at. 
the  will  of  the  council.^  So,  a  certain  location  on  the 
street  adjoining  the  public  wharves  may  be  set  aside  for 
the  unloading  of  spars  and  masts.' 

§  232.  Inclosures. — Public  premises  of  every  kind, 
whether  streets,  parks,  or  squares,  must  be  kept  open  to 
the  free  use  of  the  public,  and  any  inclosure  of  a  part  of 
their  territory  is  'per  se  an  obstruction.'^  In  Michigan  a 
technical  distinction,  based  on  the  wording  of  the  charter, 
is  made  between  encroachments  and  incumbrances,  in- 
cumbrances   being    restricted    to    impediments   to  travel 

(1)  Wood  V.  Hears,  12  Ind.  515;  State  v.  Taylor,  59  Md.  338. 

(2)  Graves  v.  Shattuck,  35  N.  H.  257. 

(3)  Mathews  v.  Kelsey,  58  Me.  56;  Davis  v.  Winslow,  51  Me.  264; 
Wharf  Co.  v.  Portland.  67  Me.  46. 

(4)  Lowell  V.  Simpson,  10  Allen,  88;  State  v,  Taylor,  59  Md.  338. 

(5)  Indianapolis  v.  Miller,  27  Ind.  394. 

(6)  Municipality  v.  Kirk,  5  La.  Ann.  34. 

(7)  State  V.  Woodward,  23  Vt.  92;  State  v.  Atkinson,  24  Vt.  448; 
Kex  V.  Ward,  31  Eng.  Com.  Law,  180. 

15 


226  MUNICIPAL   POLICE   ORDINANCES.  [§  234. 

placed  upon  the  open  streets,  while  the  former  is  the  actual 
inclosure  of  a  part  of  the  street,  or  its  occupation  by  a 
building.^ 

§  233.  Public  buildings.— The  erection  of  any  kind  of 
public  building,  as  a  market-house,  in  the  center  of  a 
street,  is  an  obstruction.  The  public  nature  of  its  use  in 
nowise  excuses  the  inconvenience  to  those  who  use  the 
streets.^ 

§  234.  Other  buildings. — As  a  general  thing  in  cities  a 
great  many  blocks  and  houses  are  built  close  up  to  the 
street  line,  and  render  the  obstruction  of  the  street  easier 
in  various  ways.  While  the  adjoining  owner  has,  to  be 
sure,  the  right  to  occupy  every  inch  of  his  own  ground,  he 
has  no  right  to  trespass  upon  the  public  easement  in  the 
street,  either  by  permanent  structures  or  by  temporary 
obstructions.  Theoretically,  no  part  of  a  bailding  should 
project  into  the  street,  but  the  strictness  of  the  rule  is  often 
relaxed,  either  by  custom  or  by  a  desire  to  grant  such 
slight  privileges  to  adjacent  owners  as  in  reality  do  not 
inconvenience  the  public. 

It  is  a  public  nuisance  to  erect  a  stall  for  the  sale  of 
goods  or  produce  on  the  street  or  sidewalk,  and  the  consent 
of  the  adjoining  proprietor  in  nowise  legalizes  the  obstruc- 
tion.' Under  power  to  regulate  the  streets,  an  ordinance 
providing  that  any  building  extending  over  the  line  of  the 
street  shall  be  torn  down  is  valid.*  It  is  apprehended  that 
the  owner  should  first  be  given  an  opportunity  to  remove 
the  projecting  part  and  that  in  case  of  his  omission  the 
municipal  authorities  would  only  be  justified  in  abating 
that  part  of  the  building  occupying  the  street.  It  is  held 
in  New  Hampshire  that  a  building  so  constructed  that  its 
roof  projects  over  the  line  of   the  street  is  an  unlawful 

(1)  Grand  Rapids  v.  Hughes,  15  Mich.  54, 

(2)  State  V.  Mobile,  5  Port.  279 ;  Columbus  v.  Jacques,  30  Ga.  506 ; 
Savannah  v.  Wilson,  49  Ga.  476 ;  Ketchum  v.  Buflfalo,  14  N.  Y.  374. 

(3)  Commonwealth  v.  Wentworth,  Bright.  318. 

(4)  Daublin  v.  New  Orleans,  1  Martin  (La.)  184. 


§  234.]  ORDINANCES   CLASSIFIED,   ETC.  227 

obstruction/  but,  though  it  might  become  a  nuisance  to 
other  property  owners  by  reason  of  obstructing  their  light, 
it  is  difficult  to  see  how  the  mere  projection  of  a  roof  on  a 
structure  of  ordinary  height  could  in  any  way  interfere 
with  the  free  use  of  the  right  of  way  by  the  general  pub- 
lic, and  it  has  been  so  held  in  England.^  The  erection  and 
maintenance  of  awuings,  posts,  and  the  like,  may  be  either 
regulated  or  prohibited  as  liable  to  impede  and  endanger 
passers-by,  and  the  ordinance  may  provide  a  mode  of  re- 
moving them.'  But  it  would  not  be  reasonable  to  provide 
that  no  goods  or  articles  should  be  suspended  from  or 
attached  to  buildings  (doors,  shutters,  and  the  like  not 
being  excepted),  so  as  to  project  over  six  inches  into  the 
street.*  An  ordinance  that  prohibits  the  hanging  of  goods 
or  other  things  on  the  front  of  a  building  so  that  they  pro- 
ject more  than  one  foot  does  not  apply  to  a  temporary 
scaffolding.'  But  porches,  or  stairways  leading  to  the 
upper  stories  of  buildings  constructed  even  with  the  street 
line,  would  be  too  material  obstructions  to  be  lawful.*  An 
ordinance  could  not  be  enacted  prohibiting  the  mainten- 
ance of  door  steps  leading  to  the  main  entrance  of  a  build- 
ing on  the  ground  floor.'  And  ornaments  attached  to 
buildings  so  as  to  project  slightly  over  the  street  can  not 
be  restrained,  and  this  is  especially  so  where  such  orna- 
ments are  customary.* 

Under  power  to  regulate  bay-windows,  it  is  unlawful  to 
authorize  the  erection  of  any  bay-window.  Some  limit  to 
their  depth  must  be  prescribed,  such  as  one  or  two  feet.^ 
ITor  may  special  licenses  be  granted  to  exempt  particular 

(1)  Garland  v.  Towne,  55  N.  H.  55. 

(2)  Goldstraw  v.  Duckworth,  5  Q.  B.  Div.  (L.  R.)  275. 

(3)  Fox  V.  Winona,  23  Minn.  10;  Pedrick  v.  Bailey,  12  Gray,  161. 

(4)  Carlisle  v.  Baker,  1  Yeates,  471. 

(5)  Hexamer  v.  Webb,  101  N.  Y.  377. 

(6)  People  V.  Carpenter,  2  Doug.  (Mich.)  273;  Pettis  v.  Johnson,  56 
Ind  139 

(7)  Gushing  v.  Boston,  128  Mass.  330. 

(8)  Philadelphia  v.  Board,  29  Leg.  Int.  53  ;  Commonwealth  v.  Blais- 
dell,  107  Mass.  234. 

(9)  Commonwealth  v.  Harris,  15  Phila.  10, 


228  MUNICIPAL   POLICE    ORDINANCES.  [§  235. 

bay-windows  from  the  operation  of  a  prohibitory  ordi- 
nance.^ It  is  held  that  prohibition  of  bay-windows  does 
not  apply  to  such  structures  built  out  from  the  second  story 
of  a  building,^ 

Doors  and  window-shutters  may  be  so  hung  that  they 
swing  out  over  the  street  line  without  being  unlawful  ob- 
structions.' So  may  iron  gratings,  trap-doors,  and  like 
arrangements  for  lighting  and  gaining  access  to  under- 
ground rooms,  be  suffered  in  the  sidewalk,  and  when  neces- 
sary to  open  such  passage-ways  for  the  purpose  of  putting 
in  goods  and  the  like  they  may  be  left  open  a  reasonable 
lenght  of  time.*  Although  ingress  to  cellars  may  be  had 
through  gratings  in  the  sidewalk,  the  grating  must  be 
securely  fastened.  Any  unprotected  or  unguarded  opening 
in  a  street  or  sidewalk  is  jper  se  a  nuisance  and  an  obstruc- 
tion to  travel.^ 

As  Judge  Dillon  says  :  "  The  owners  of  lots  bordering 
upon  streets  or  ways  have,  or  may  have,  a  right  to  make  a 
reasonable  and  proper  use  of  the  street  or  way.  "What 
may  be  deemed  such  a  use  depends,  in  the  absence  of 
legislative  or  authorized  municipal  declaration,  much  upon 
the  local  situation  and  public  usage — that  is,  the  use  which 
others  similarly  situated  make  of  their  land,  this  being 
evidence  of  a  reasonable  use."  * 

§  235.  Snow. — While  it  is  clear  that  municipal  corpora- 
tions can  prevent  private  individuals  from  obstructing 
travel  on  the  streets  by  their  own  acts,  it  is  somewhat 
doubtful  whether  they  have  power  to  compel  adjoining 
owners  to  keep  the  sidewalks  clear  from  snow,  so  as  to  be 
passable.     Such  power  is  frequently  exercised  and  seldom 

(1)  Commonwealth  v.  Reimer,  15  Phila.  72. 

(2)  Bowers  v.  Coultson,  11  Phila.  182. 

(3)  0' Linda  v.  Lothrop,  21  Pick.  292  ;  Underwood  v.  Carney,  1  Cush. 
285. 

(4)  Underwood  v.  Carney,  1  Cush.  285;  Irvine  v.  Wood,  51  N.  Y.  224. 

(5)  Dill.  Mun.  Corp.,  g  734. 

(6)  Beatty  v.  Gilmore,  16  Pa.  St.  463;  Runyon  v.  Bordine,  2  Green 
(N.  J.)  472;  Scammon  v.  Chicago.  25  111.  424;  Dill.  Mun.  Corp.,  §§  699, 
670. 


§  237.]  ORDINANCES    CLASSIFIED,   ETC.  229 

questioned,  but  the  courts  of  Illinois  have  held  that  this 
is  a  duty  belonging  exclusively  to  the  public,  and  that 
private  persons,  being  in  no  way  responsible  for  the  ob- 
struction, can  not  be  compelled  to  remove  it.  The  same 
would  be  true  of  regulations  as  to  sprinkling  sand  or  ashes 
on  slippery  walks.^  Though  this  view  is  in  one  sense  cor- 
rect, still  considerations  of  public  benefit  should  over- 
balance any  slight  inconvenience  to  the  individual.  The 
inconvenience  of  a  considerable  depth  of  snow  on  the  pub- 
lic walks  is  very  great,  and  the  most  perfectly  organized 
police  system  would  be  ineffectual  to  remove  the  obstruc- 
tion expeditiously.  Adjoining  owners  are  so  situated  as  to 
be  able  to  clear  the  walks  in  a  short  time,  and  though  a 
slight  inequality  of  burden  may  fall  upon  the  citizens 
thereby,  such  regulations  ought  to  be  sustained  as  proper 
and  reasonable  police  measures.  And  such  is  the  conclu- 
sion of  the  courts  of  Massachusetts  and  other  states  where 
the  question  has  been  thoroughly  considered.^ 

§  236.  Moving  buildings. — The  moving  of  buildings 
over  the  public  streets  is  a  use  which  could  not  help  but 
greatly  impede  travel  unless  conducted  with  great  care  and 
rapidity.  General  police  powers  are  sufficient  to  authorize 
the  passage  of  regulations  governing  their  removal.^ 
When  the  subject  is  not  covered  by  ordinance,  the  moving 
of  a  building  on  suitable  streets  with  expedition  and  care 
is  not  unlawful.* 

§  237.  Miscellaneous  obstructions. — Among  other 
things  that  have  been  held  to  be  obstructions,  may  be 
mentioned  the  following.     These  illustrations  are  not  use- 

(1)  Gridley  v.  Bloomington,  88  111.  554;  Chicago  v.  O'Brien,  111  111. 
532. 

(2)  In  re  Goddard,  16  Pick.  504;  Railway  Co.  v.  Cambridge,  11  Allen, 
287;  Kirby  v.  Market,  14  Gray,  252;  Taylor  v.  Railway  Co.,  45  Mich. 
74.  Rule  approved  in  Dill.  Mun.  Corp.,  §  394;  Bonsall  v.  Lebanon,  19 
Ohio,  418;  Paxton  v.  Sweet,  13  N.  J.  196;  Mayor  v.  Mayberry,  6 
Humph.  368 ;   Woodbridge  v.  Detroit,  8  Mich.  274. 

(3)  Day  v.  Green,  4  Cush.  433, 

(4)  Graves  v.  Shattuck,  35  N.  H.  257. 


230  MUNICIPAL    POLICE    ORDINANCES.  [§  237. 

ful  simply  to  show  what  are  considered  obstructions,  but 
principally  to  show  what  may  be  lawfully  ordained  against 
as  obstructions,  under  general  police  powers,  and  power 
to  regulate  streets : 

A  truck  backed  up  against  the  sidewalk  and  across  a 
street  railroad  track  for  the  purpose  of  unloading,  is  an  un- 
necessary obstruction.^ 

If  the  nature  of  a  person's  business  is  such  that  its  pur- 
suit tends  to  partially  block  a  street,  the  fact  that  the  busi- 
ness is  otherwise  lawful  does  not  excuse  him.  He  must 
remove  his  stand  to  a  location  that  is  more  convenient. 
For  example,  a  congregation  of  carts  to  receive  the  refuse 
from  a  factory  or  manufacturing  establishment  is  inex- 
cusable.^ A  timber  dealer  can  not  use  the  highway  as  a 
depository  for  his  timber.^ 

The  highway  may  not  be  used  as  a  stone-yard  ;*  nor  as 
a  stable  yard  ;^  nor  as  a  place  in  which  to  deposit  the  ma- 
terials of  any  business.^  It  is  unlawful  to  obstruct  the 
streets  by  attracting  crowds  around  a  place  where  goods 
are  being  sold,^  or  by  preaching,^  or  speeches.^ 

Though  obstructions  of  any  kind  may  generally  be  legis- 
lated against  by  the  municipality,  it  is  not  lawful  for  it  to 
authorize  an  obstruction,  or  any  thing  that  amounts  to  a 
nuisance,  unless  express  power  is  given.^" 

(1)  State  V.  Foley,  31  la.  527. 

(2)  People  V.  Cunningham,  1  Denio,  524. 

(3)  Rex  V.  Jones,  6  East,  230;  Rex  v.  Moore,  3  B.  &  Aid.  184;  Thorpe 
V.  Brumfitt,  L.  R.  Ct.  App.  650. 

(4)  Gushing  v.  Adams,  18  Pick.  110;  Commonwealth  v.  King,  13 
Mete.  115. 

(5)  The  King  v.  Cross,  3  Campb.  224. 

(6)  Queen  v.  Davis,  24  U.  C.  C.  P.  575 ;  Vars  v.  Railway  Co.,  23  U.  C. 
C.  P.  114;  The  King  v.  Russell,  6  East,  427. 

(7)  The  King  v.  Carlisle,  6  C.  &  P.  636;  White  v.  Kent,  11  0.  S.  550. 
(S)  Commonwealth  v.  Davis,  S.  C.  Mass.,  Jan.,  1886. 

(9)  Barker  v.  Commonwealth,  19  Pa.  St.  412. 

(10)  State  V.  Mobile,  5  Port.  279;  Columbus  v.  Jacques,  30  Ga.  506; 
State  V.  Woodward,  23  Vt.  92;  Commonwealth  v.  Rush,  14  Pa.  St.  186; 
Att'y.  Gen'l.  v.  Heisohn,  18  N.  J.  Eq.  410;  Stetson  v.  Faxon,  19  Pick. 
147;  State  V.  Railroad,  23  N.  J.  360;  State  v.  Laverack,  34  N.  J.  20; 
Dill.  Mun.  Corp.,  §§  645,  660,  383. 


§  238.]  ORDINANCES    CLASSIFIED,    ETC.  231 

§  238.  Steam  railroads. — The  occupation  of  the  streets 
by  the  tracks  and.  rolling  stock  of  steam  railroads,  results 
in  more  interference  with  other  modes  of  travel  and  with 
the  free  use  of  the  streets  than  any  other  lawful  obstruc- 
tion, and  for  that  reason  needs  to  be  more  closely  guarded. 
The  primary  right  to  authorize  railroad  companies  to  select 
and  appropriate  rights  of  way  lies  with  the  state,  and  when 
exercised,  the  right  of  way  may  be  laid  out  through  a  mu- 
nicipal corporation  as  well  as  anywhere  else.  Express 
power  must  be  given  to  a  municipality  in  order  to  authorize 
it  to  grant  a  right  of  way  to  a  railroad  company  over  the 
streets.^  It  is  even  held  that  power  to  grant  the  use  of 
the  streets  to  railroads  is  limited  to  street  railroads,  and 
does  not  apply  to  steam  railroads.^  Power  to  regulate  the 
streets,  together  with  a  statutory  provision  that  no  rail- 
road shall  be  constructed  through  a  municipal  corporation, 
without  the  consent  of  the  council,  imply  powers  in  the 
council  to  consent  to  such  construction.'  In  Kansas  mu- 
nicipalities may  provide  for  and  regulate  the  passage  of 
steam  railroads  along  the  streets.*  And  in  Kentucky  mu- 
nicipal consent  may  be  given  to  such  use.®  Whenever 
municipalities  may  consent  to  the  occupation  of  the  streets 
by  steam  railroads,  they  have  a  right  to  couple  with  their 
consent  any  condition  that  they  may  see  fit,  and  compli- 
ance with  such  condition  becomes  a  condition  precedent  to 
the  right  to  exercise  the  franchise.  The  railroad  can  not 
use  the  streets,  even  by  consent  of  the  council,  so  as  to  af- 
fect the  public  easement  to  a  greater  extent  than  is  neces- 
sary to  enable  it  to  pass  through  or  get  into  the  corporate 
territory.  The  power  to  construct  a  railroad  can  never  be 
construed  to  allow  the  occupation  of  a  street  longitudinally. 

(1)  Railway  Co.  v.  Covington,  9  Bush,  127;  Perry  v.  Railroad  Co.,  55 
Ala.  425. 

(2)  State  V.  Railroad  Co.,  85  Mo.  263;  Railroad  Co.   v.   Railroad  Co., 
20  N.  J.  Eq.  69. 

(3)  Brown  v.  Duplessis,  14  La.  Ann.  842, 

(4)  Railroad  Co.  v.  Garside,  10  Kan.  552. 

(5)  Railroad  Co.  v.  Brown,  17  B.  Mon.  763;  Wolfe  v.  Railroad  Co.,  15 
B.  Mon.  404;  Cosby  v.  Railroad  Co.,  10  Bush,  288. 


232  MUNICIPAL   POLICE    ORDINANCES.  [§  239. 

That  could  not  be  done  without  express  legislative  au#- 
thority.^  Under  all  circumstances,  the  municipality  may 
prescribe  the  grade  and  such  conditions  as  to  paving  as  it 
may  deem  necessary  to  preserve  the  usefulness  of  the 
street.^  A  grant  of  exclusive  control  over  the  street  au- 
thorizes an  ordinance  permitting  the  location  of  a  rail- 
road/ But  not  when  the  construction  of  the  railroad 
would  materially  interfere  with  the  established  street 
grade.* 

New  York  and  New  Jersey  seem  to  be  exceptions  to  the 
general  rule  that  steam  railroads  are  subject  to  municipal 
police  regulation  under  their  general  police  powers.  In 
New  York  the  whole  subject  of  railroad  management  is 
covered  by  statute,  and  it  is  held  that  it  is  not  the  policy 
of  the  state  to  give  to  municipalities  any  power  to  regulate 
it.^  Although  this  adverse  policy  is  less  pronounced  in 
New  Jersey,  it  has  been  held  there  that  the  power  of  po- 
lice regulation  of  railroads  must  either  be  expressly 
granted  to  the  municipality,  or  must  be  found  as  a  condi- 
tion in  the  grant  of  the  franchise  to  the  railroad  company.* 

§  239.  Police  regulation  of  steam  railroads. — Author- 
ity to  occupy  and  use  the  streets  of  a  corporation,  however 
conferred,  never  acts  to  exempt  the  railroad  from  reason- 
able police  regulation.  Under  general  police  powers  any 
restriction  may  be  made  upon  the  mode  of  using  the 
streets  by  railroads  that  look  to  the  security  and  comfort 
of  the  citizens.  Unless  restricted  by  the  legislature  the 
use  of  steam  motors  may  be  prohibited.^  If  once  permis- 
sion is  given  to  use  steam  motors,  no  subsequent  prohibi- 

(1)  Ingham  V.  Railroad  Co.,  34  la.  249;  Railroad  Co.  v.  Newark,  2 
Stockt.  352. 

(2)  Railway  Co.  v.  Louisville,  8  Bush,  415 ;  Slatten  v.  Railroad  Co., 
29  la.  148. 

(3)  Moses  V.  Railroad  Co.,  21  111.  516. 

(4)  Railroad  Co.  v.  Shields,  33  Ga.  601. 

(5)  City  V.  Railroad  Co.,  79  N.  Y.   561. 

(6)  Hoboken  v.  State,  30  N.  J.  225. 

(7)  Railroad  Co.  v.  Buffalo,  5  Hill,  209 ;  Donnaher  v.  Stale,  16  Mis& 
649. 


§  239.]  ORDINANCES   CLASSIFIED,   ETC.  233 

tion  destructive  of  the  privilege  would  be  lawful.  It  falls 
within  the  province  of  police  regulation  to  limit  railroad 
trains  to  a  certain  comparatively  slow  rate  of  speed  while 
in  motion  within  the  limits  of  the  corporation.^  A  re- 
striction to  six  miles  an  hour  is  neither  unreasonable  nor 
in  restraint  of  trade.^  Or  even  to  four  miles.'  And  such 
a  provision  operates  over  the  whole  city  whether  platted 
or  not.*  It  would  also  operate  over  such  portions  of  the 
right  of  way  as  lie  within  the  private  yards  of  the  railroad, 
unless  it  is  so  drawn  as  to  exclude  such  a  construction.* 
The  municipality  may  regulate  the  mode  of  laying  tracks, 
and  may  compel  reasonable  precautions  to  be  taken  to- 
guard  the  public  from  danger  at  street  crossings  and  other 
exposed  places.^  It  would,  for  instance,  be  reasonable  to 
compel  the  stationing  of  a  flagman  at  any  crossing  which 
in  the  judgment  of  a  prudent  man  would  be  considered 
dangerous,  but  not  if  so  isolated  and  open  to  view  that 
there  would  be  hardly  any  danger.^ 

An  ordinance  directed  against  "any  kind  of  obstruc- 
tion "  to  the  streets  applies  to  the  case  of  a  railroad  com- 
pany/ Under  general  police  powers  an  ordinance  may 
provide  that  boys  and  other  persons  not  connected  with  a 
railway,  except  passengers  and  others  in  the  act  of  taking 
passage,  are  prohibited  from  getting  on  trains  or  cars 
within  the  city  limits.^     The  ringing  of  bells,  whistling, 

(1)  Kailroad  Co.  u.  Chenoa,  43  111.  209;  Robertson  v.  Railroad  Co., 
84  Mo.  119;  Gahagan  v.  Railroad  Co.,  1  Allen,  187;  Railroad  Co.  v.  Ga- 
lena, 40  111.  344;  Myers  v.  Railroad  Co.,  57  la.  555. 

(2)  Knobloch  v.  Railway  Co.,  31  Minn.  402;  Railroad  Co.  v.  Hag- 
gerty.  67  111.  113. 

(3)  Whitson  v.  Franklin,  34  Ind.  392. 

(4)  Whitson  v.  Franklin,  34  Ind.  392. 

(5)  Crowley  v.  Railroad  Co.,  65  la.  658;  Green  v.  Canal  Co.,  38  Hun, 
51.     Contra,  State  v.  Jersey  City,  29  N.  J.  170.     See  ante,  sec.  145. 

(6)  Textor  u.  Railroad  Co.,  59  Md.  63;  Railroad  Co.  v.  People,  92  111. 
179;  Railroad  v.  Chenoa,  43  111.  209. 

(7)  Railway  Co,  v.  Jacksonville,  67  111.  37;  s.  c,  16  Am.  Rep.  611. 
Contra,  Ravenna  v.  Penna  Co.,  0.  S.  1887,  44  or  45  O.  S.  Rep. 

(8)  Railroad  Co.  v.  Decatur,  33  111.  381 ;  Railroad  Co.  v.  Galena,  40 
111.  344. 

(9)  Bearden  v.  Madison,  73  Ga.  184. 


234  MUNICIPAL   POLICE   ORDINANCES.  [§  241. 

Ifettiug  ofl  steam  and  general  conduct  of  the  train  and  en- 
gine may  likewise  be  regulated.^ 

The  leaving  of  cars,  trains,  or  engines  standing  upon 
street  crossings  for  more  than  three  minutes  at  a  time  may 
be  prohibited,^  or  for  ten  minutes,  except  in  case  of  acci- 
dent.' If  a  street  is  extended  or  opened  across  an  existing 
railroad,  but  at  a  different  grade,  the  railroad  company  can 
not  be  compelled  to  grade  the  street  approaches.^ 

§  240.  Street  railways. — Street  railways  must,  of  neces- 
sity, use  the  streets,  and  still,  being  an  additional  burden, 
such  use  must  be  authorized  by  legislative  enactment.  As 
a  matter  of  fact,  the  right  to  charter  street  railways  is  gen- 
erally left  to  the  discretion  of  the  local  government.*  And 
it  is  generally  held  that  the  usual  powers  over  streets  and 
their  use  will  authorize  municipalities  to  allow  them  to  be 
occupied  by  street  railways.^  This  power  is  subject  to 
three  limitations:  First,  that  the  road  to  exercise  the 
francise  must  be  for  the  public  use,  and  not  merely  to  ac- 
commodate some  one  business  or  individual  ;^  second,  that 
the  franchise  can  not  be  granted  to  one  railway  to  the  exclu- 
sion of  all  others.  If  attempted  the  ordinance,  in  so  far, 
is  void.^  Third.  The  grant  must  not  exclude  or  restrict 
the  use  of  the  street  as  a  public  highway.' 

§  241.  Regulations. — Under  general  power  to  control 
the  use  of  the  streets,  the  use  of  steam  motive  power  on 
street  railways  may,  by  ordinance,  be  declared  a  nuisance.^** 

(1)  Mere  V.  Kailway  Co.,  14  Mo.  App.  459. 

(2)  Railroad  Co.  v.  Jersey  City,  47  N.  J.  286 

(3)  McCoy  V.  Railroad  Co.,  5  Houston,  599. 

(4)  Railroad  Co.  v.  Bloomington,  76  111.  447. 

(5)  Boston  V.  Richardson,  13  Allen,  146;  Railway  Co.  v.  Railway  Co., 
2  Col.  673. 

(6)  Dill.  Mun.  Corp.,  §  719;  Brown  v.  Duplessis,  14  La.  Ann.  842. 

(7)  State  V.  Trenton,  36  N.  J.  79. 

(8)  Railroad  Co.  v.  Transit  Ry.,  24  Fed.  Rep.  306;  Railroad  Co.  v. 
Smith,  29  O.  S.  292;  State  v.  Coke  Co.,  18  0.  S.  292. 

(9)  Railroad  Co.  v.  Belleville,  20  111.  App.  584. 

(10)  Railroad  v.  Lake  View,  95  111.  207;  Railroad  Co.  v.  Richmond,  96 
U.  S.  521  (over  certain  streets). 


§  241.]  ORDINANCES    CLASSIFIED,    ETC.  235 

After  a  railroad  company  has  received  authority  to  use 
the  streets  it  is,  as  we  have  seen,  subject  not  only  to  the 
charter  conditions  but  also  to  such  further  police  regula- 
tions as  the  public  safety  and  convenience  may  require. 
So,  under  s:eneral  police  power,  street  railway  companies 
may  be  compelled,  in  pursuance  of  an  ordinance,  to  con- 
struct their  tracks  of  a  certain  width,  so  as  to  enable  other 
vehicles  than  the  cars  to  use  them.^  A  license  may  be  ex- 
acted for  each  car  in  use  under  power  to  license  hackmen, 
draymen,  omnibus  drivers,  cabmen,  and  all  others  pursuing 
like  occupations.^  But  power  to  regulate  common  carriers 
and  carriers  of  passengers  does  not  authorize  an  ordinance 
requiring  a  conductor  on  every  car.^  The  ordinances  may 
provide  for  a  reasonable  and  safe  rate  of  speed ;  that  the 
cars  shall  not  be  stopped  upon  the  space  formed  by  the  in- 
tersection of  two  streets ;  that  lights  and  signals  of  warn- 
ing shall  be  carried ;  that  sufficient  brakes  are  provided, 
and  similar  regulations  tending  to  public  security. 

Power  to  "  open,  alter,  abolish,"  etc.,  streets  does  not 
warrant  a  grant  to  a  railroad  company  of  the  right  to  ob- 
struct a  street  by  permanent  structures  so  as  to  wholly  de- 
stroy its  usefulness.* 

As  with  steam  railroads,  any  reasonable  conditions  may 
be  attached  to  the  grant  of  a  franchise  to  a  street  railroad 
company,  with  which  it  must  comply.  But  after  the  fran- 
chise has  been  accepted  and  acted  upon  no  further  con- 
ditions can  be  imposed,  unless  they  are  such  as  fairly  come 
within  the  designation  of  police  regulation.  For  example, 
unless  it  is  so  provided  in  the  origi-nal  grant  a  street  rail- 
road company  can  hot  be  compelled  to  pave  the  street  be- 
tween its  tracks.^ 

(1)  Railroad  Co.  v.  Lake  View,  95  111.  183. 

(2)  AUerton  v.  Chicago,  9  Biss,  552;  s.  c,  6  Fed.  Rep.  555. 

(3)  Railroad  Co.  v.  Brooklyn,  37  Hun,  413.  See  further  as  to  gen- 
eral principle,  Railway  Co.  v.  Philadelphia,  58  Pa.  St.  119;  State  v. 
Herod,  29  la.  123;  Railway  Co.  v.  Louisville,  4  Bush,  478. 

(4)  Lackland  v.  Railroad  Co.,  31  Mo.  180. 

(5)  Kansas  City  v.  Corrigan,  86  Mo.  67.  Contra,  Columbus  v.  Street 
Railway  Co.,  44  or  45  O.  8.  ( 18«7.) 


236  MUNICIPAL   POLICE    ORDINANCES.  [§  242. 

A  railroad  company  is  neither  a  ^'person"  nor  an  ^^em- 
ployment "  within  the  meaning  of  those  words  as  used  in 
an  ordinance  requiring  the  payment  of  a  license  tax.* 

Though  the  railroad  company  has  agreed  to  keep  the 
street  in  repair,  it  can  not  be  compelled  to  lay  a  new  pave- 
ment.^ 

It  has  been  held  reasonable  to  compel  a  street  railway 
company  to  report  quarterly  the  number  of  passengers  it 
has  carried.^  And  to  prescribe  the  manner  of  constructing 
the  road,  and,  in  general,  the  mode  of  its  operation.*  If  a 
street  railway  was  built  under  an  ordinance  that  reserves 
no  taxing  power  to  the  city,  the  city  can  not  afterward  tax 
it  beyond  the  rate  at  which  all  property  is  taxed.'  And 
when  the  company  is  chartered  subject  to  such  tax  as  the 
city  may  impose,  the  city  is  restricted  to  its  ordinary  pow- 
ers of  taxation  unless  the  city  charter  allows  special  taxa- 
tion of  railroads.^  Except  under  special  power,  an  exclu- 
sive right  to  use  a  street  can  not  be  granted  for  any 
length  of  time.^ 

§  242.  Sewerage  system. — Under  power  to  control  the 
use  of  the  streets  a  corporation  may  authorize  almost  any 
use  which  is  for  the  manifest  good  of  the  public,  and  with- 
out regard  to  whether  the  fee  to  the  streets  is  vested  in 
the  public  or  only  the  right  to  use.  Among  such  cases  are 
sewerage,  a  system  of  pipes  for  the  transportation  of  water, 
gas,  steam,  and  other  conveniences,  and,  under  exceptional 
circumstances,  underground  railways.  The  right  to  devote 
the  street  to  such  purposes  must  be  exercised  so  as  tointer- 

(1)  Lynchburg  v.  Railway  Co.,  80  Va.  237. 

(2)  State  V.  Railroad  C!o.,  85  Mo.  263;  contra.  City  v.  Erie  Railroad 
Co.,  7  Phila.  321. 

(3)  St.  Louis  Ry.  Co.  v.  St.  Louis,  89  Mo.  44. 

(4)  Wyandotte  v.  Corrigan,  35  Kan.  21. 

(5)  Mayor  v.  Second  Ave.  Railroad  Co.,  32  N.  Y.  261. 

(6)  Mayor  v.  Railroad  Co.,  97  N.  Y.  275 ;  Mayor  v.  Railroad  Co.,  33 
N.  Y.  42. 

(7)  Railway  Co.  v.  Jonesville,  8  Bush,  415;  Davis  v.  Mayor,  14  N.  Y- 
506;  Milhau  v.  Sharp,  27  N.  Y.  611 ;  Coleman  v.  Railroad  Co.,  38  N.  Y. 
201. 


§  243.]  ORDINANCES  CLASSIFIED,   ETC.  237 

fere  as  little  as  possible  with  the  rights  of  adjoining  owners. 
The  construction  of  a  system  of  sewerage  is  a  lawful  use 
of  the  streets.^  And  power  to  open  streets  and  construct 
sidewalks  implies  power  to  construct  a  sewer  under  the 
sidewalk  as  well  as  under  the  street.^  It  is  manifest  that 
sewerage  can  not  safely  be  conducted  in  open  ditches  or 
gutters  over  the  surface,  but  must  be  carried  away  beneath 
the  surface.  The  necessity  of  disposing  of  sewerage  does 
not,  however,  imply  any  power  in  the  corporation  to  con- 
demn private  property  for  that  purpose.  Unless  specially 
authorized,  the  entire  system  must  be  constructed  under 
the  public  streets.'  When  a  sewerage  system  is  once  es- 
tablished, reasonable  regulations  may  be  imposed  upon 
those  individuals  who  desire  to  participate  in  its  benefits. 
They  may  be  compelled  to  make  certain  specified  kinds  of 
connections  and  to  bear  the  entire  expense  of  laying  the 
connecting  pipes.  In  this  expense  could  be  included  a 
fair  charge  for  supervision  and  inspection.* 

This  right  to  repair  and  construct  sewers  can  not  be  di- 
vested by  contract  or  otherwise.^ 

§  243.  Water  supply. — A  municipality  may,  in  pursu- 
ance of  its  ordinary  power  of  street  control,  and  with  a 
view  to  the  public  health  and  convenience,  construct  cis- 
terns under  the  streets  for  the  storage  of  water  with  which 
to  extinguish  fires  or  to  sprinkle  the  streets.®  Although 
this  is  undoubtedly  the  correct  view,  still  the  courts  of 
Iowa  have  held  that  the  cities  of  Keokuk  and  Dubuque, 

(1)  Traphagen  v.  Jersey  City,  29  N.  J.  Eq.  206;  Stondinger  v.  New- 
ark, 28  N.  J.  Eq.  187,  446 ;  In  re  Fowler,  53,  N.  Y.  60;  Quincy  v.  BuU^ 
106  111.  337;  Cincinnati  v.  Penny,  21  0.  S.  499.  But  see  Glasby  v.  Mor- 
ris, 18  N.  J.  Eq.  72. 

(2)  Americus  v.  Eldridge,  64  Ga.  524. 

(3)  Allen  v.  Jones,  47  Ind.  438. 

(4)  Borough  v.  Shortz,  61  Pa.  St.  399 ;  Commonwealth  v.  Hartford, 
28  Conn.  363;  State  v.  Jersey  City,  30  N.  J.  148;  Stroud  v.  Philadel- 
phia, 61  Pa.  St.  255;  Boston  v.  Shaw,  1  Met.  130;  In  re  Workman,  7 
Ont.  425. 

(5)  Railway  Co.  v.  Louisville,  8  Bush,  415. 

(6)  West  V.  Bancroft,  32  Vt.  367;  Louisville  v.  Osborne,  10  Bush,  226.. 


238  MUNICIPAL  POLICE  ORDINANCES.  [§  244. 

on  account  of  the  nature  of  the  right  vested  in  the  public  to 
their  streets,  are  exceptions.^  But  still  the  use  must  be  rea- 
sonable, and  a  cistern  occupying  half  the  width  of  a  street, 
having  a  steam  engine  in  connection  therewith,  is  an  un- 
lawful erection,  although  its  purpose  is  lawful.^ 

The  use  of  the  streets  for  the  laying  of  water  pipes  to 
supply  the  citizens  and  to  provide  for  fires  is  proper  and 
necessary,'  and  the  adjoining  proprietor  is  not  entitled  to 
compensation.* 

It  has  been  held  in  Connecticut  that  power  to  regulate 
or  prohibit  the  opening  of  streets  for  public  or  private 
purposes,  and  to  regulate  the  laying  of  gas  and  water  pipes, 
does  not  authorize  any  assessment  in  the  form  of  a  license, 
and  that  a  charge  of  $1  for  a  license,  and  an  additional  $10 
for  each  nine  hundred  feet  of  pipe  laid  in  an  unpaved 
street  and  $50  for  the  same  length  in  a  paved  street,  was 
unlawful.^  It  is  proper  to  assess  the  cost  of  such  improve- 
ments upon  adjoining  owners,  only  under  statutory  or 
charter  authority.  Otherwise  being  a  public  use,  the  bur- 
den of  providing  for  it  would  rest  upon  the  municipality 
at  large. 

§  244.  Gas  pipes. — As  water  is  necessary  to  protect  the 
city  from  disastrous  fires,  so  is  gas  necessary  to  light  the 
streets,  and  proper  provision  for  its  distribution  becomes 
of  public  moment,  as  well  as  beneficial  to  the  individual 
consumer.  Although,  a  municipality  under  power  to  light 
the  streets,  or  even  under  power  to  control  the  streets,  and  to 
provide  for  the  security  and  convenience  of  its  citizens, 
might  engage  in  the  construction  of  a  system  of  gas  pipes 
as  a  public  work,  still  it  is  customary,  on  account  of  the 
large  capital  necessary  and  the  profit  to  be  derived  from 

(1)  Dubuque  v.  Maloney,  9  la.  450;  Dubuque  v.  Benson,  23  la.  248; 
Davis  V.  Clinton,  50  la.  585  ;  Cook  v.  Burlington,  30  la.  94;  Des  Moines 
V.  Hall,  24  la.  234. 

(2)  Morrison  v.  Hinkson,  87  111.  587. 

(3)  Dill.  Mun.  Corp.,  §  697;  Milhau  v.  Sharp,  15  Barb.  210;  Kelsey  t>. 
King,  32  Barb.  410;  Quincy  v.  Bull,  106  111.  337. 

(4)  Commissioners  V.  Hudson,  2  Beasley(N.  J.)  420. 

(5)  New  Haven  v.  Water  Co.,  40  Conn.  106. 


§  245a.]  ORDINANCES    CLASSIFIED,   ETC.  239 

the  sale  of  gas  to  private  consumers,  to  vest  the  privilege 
of  laying  pipes  in  private  persons.^  In  order,  however, 
to  grant  such  privileges  the  municipality  must  have  ex- 
press power  at  least  to  light  the  streets.^  The  municipality 
can  never  grant  an  exclusive  right  to  use  the  streets  for  such 
purpose,  except  as  it  has  express  power  to  grant  such  priv- 
ileges for  a  limited  time.  Such  power  may  be  necessary 
to  encourage  the  investment  of  capital  in  such  useful  en- 
terprises,, but  care  must  be  exercised  not  to  create  a  mo- 
nopoly,' and  power  to  regulate  gas  pipes  after,  they  are 
laid  can  not  be  delegated.* 

§  244a.  Telegraph  poles. — Telegraph  companies,  al- 
though of  great  service  to  the  public,  must,  like  railroads, 
have  express  authority  to  use  the  streets  of  a  city  for  the 
support  of  their  wires.^  And  the  city  may  impose  any 
reasonable  restrictions  upon  the  mode  of  conveying  the  wires 
through  the  city.  It  may  prescribe  the  streets  over  which 
they  may  be  strung,  the  size,  height,  and  frequency  of 
the  poles  ;  and  if  compelled  to  lay  the  wire  underground, 
the  manner  of  so  doing. ^ 

A  telegraph  company  is  subject  to  all  reasonable  ordi- 
nances, and  the  actual  erection  of  poles  may  be  lawfully 
put  entirely  under  the  control  of  the  police  or  fire  depart- 
ment.^ 

(1)  Garrison  v.  Chicago,  7  Biss.  480. 

(2)  Nelson  v.  La  Porte,  33  Ind.  258;  State  v.  Gas  Co.,  18  0.  S.  262 ; 
Milhan  v.  Sharp,  15  Barb.  210;  Gas  Light  Co.  v.  Gas  Co.,  25  Conn.  19; 
Smith  V.  Gas  Co.,  12  How.  Pr.  187;  People  v.  Benson,  30  Barb.  24;  New 
Orleans  v.  Clark,  95  U.  S.  644;  Gas  Light  Co.  v.  Middleton,  59  N.  Y. 
228;  East  St.  Louis  v.  Gas  Light  Co.,  98  111.  415. 

(3)  Dill.  Mun.  Corp.,  §  692-696;  State  u.  Gas  Co.,  18  0.  S.  262;  In- 
dianapolis V.  Gas  Co.,  66  Ind.  396;  Gas  Light  Co.  v.  Gas  Co.,  25  Conn. 
19,  and  other  cases  cited  above;  Gas  Co.  v.  Des  Moines,  44  la.  508. 

(4)  Anderson  v.  Gas  Co.,  12  Daly,  462. 

(5)  Commonwealth  v.  Boston,  97  Mass.  555;  Domestic  Telegraph  Co. 
V.  Newark,  10  East.  Rep.  122.  (N.  J.  1887). 

(6)  Telegraph  Co.  v.  Chicago;  16  Fed.  Rep.  309;  s.  c,  11  Biss.  539. 

(7)  City  V.  Telegraph  Co.,  11  Phila.  327. 


240  MUNICIPAL    POLICE    ORDINANCES.  [§  246. 

§  245.  Restrictions  on  ordinary  use  of  the  streets. — 
It  is  lawful  for  a  municipal  corporation  to  restrain -by  ordi- 
nance any  immoderate  or  incommodious  use  of  the  streets, 
to  insure  freedom  of  passage  and  the  absence  of  any 
thing  that  might  be  dangerous.  The  streets  may  be  kept 
free  from  all  things  which  are  'per  se  nuisances  and  from 
many  other  things  which  become  nuisances  from  improper 
use.  Hawkers  and  peddlers,  stands  for  the  sale  of  fruits  and 
nuts,  and  any  thing  that  tends  to  attract  a  crowd  of  per- 
sons and  thereby  impede  progress  of  wayfarers,  may  be  pro- 
hibited from  being  on  the  streets,  whenever  the  council 
deems  it  necessary.^  Any  method  of  selling  goods  by  out- 
cry in  the  streets  or  public  places,  or  by  attracting  persons 
to  purchase  goods  exposed  at  such  place,  by  signals  or  pla- 
cards, or  by  going  from  house  to  house  selling  or  offering 
goods  for  sale  at  retail  to  persons  who  are  not  dealers  in 
such  commodities,  whether  for  future  or  immediate  delivery, 
constitutes  hawking  or  pedding  within  a  statute  or  ordi- 
nance prohibiting  those  things.^ 

The  streets  are  open  to  the  public  for  all  ordinary  uses, 
and  it  is  considered  that  marching  in  procession  through 
the  streets  with  torches,  flags,  or  musical  instruments  is  a 
lawful  use,  and  that  associations  or  organizations  of  persons 
can  not  be  prohibited  from  so  doing  without  the  consent 
of  the  local  authorities.' 

Hours  of  the  day  may  be  fixed  during  which  it  shall  be 
unlawful  to  drive  cattle  either  singly  or  in  droves  through 
the  streets.*  Such  an  ordinance  would  not  be  violated  by 
transporting  cattle  over  the  streets  in  vans  drawn  by  horses.* 

§  246.  Vehicles. — In  order  that  traffic  may  not  be  im- 
peded upon  the  streets  of  a  corporation,  and  to  prevent  the 
use  of  the  streets  by  vehicles  and  loads  of  a  nature  to  injure 
the  pavement  or  damage  the  road-bed,  corporations  are 

(1)  Caldwell  v.  Alton,  33  111.  416;  St.  Paul «.  Traeger,  25  Minn.  248. 

(2)  Graffly  v.  Rushville,  107  Ind.  502. 

(3)  Frazee's  Case,  35  Alb.  L.  Jour.  6  (Mich.  1886). 

(4)  Board  v.  Heister,  37  N.  Y.  661. 

(5)  Triggs  V.  Lester,  1  L.  R.  Q.  B.  259. 


§  247.]  ORDINANCES    CLASSIFIED,  ETC  241 

generally  empowered  to  regulate  the  use  of  vehicles.  This 
power  is  reasonably  exercised  by  requiring  the  owners  of 
Buch  vehicles  as  tend  from  the  nature  of  their  use  to  obstruct 
the  streets,  or  such  as  may  endanger  the  security  of  foot 
passengers,  to  procure  a  license,  or  by  regulating  the  use 
of  vehicles  kept  for  hire.  It  does  not  authorize  restrictive 
regulations  upon  all  classes  of  vehicles  indiscriminately,  nor 
even  upon  all  classes  of  vehicles  used  in  the  conduct  of  any 
business.  A  license  imposed  upon  vehicles  used  in  any 
business  without  exempting  those  whose  use  can  in  no  way 
be  dangerous  to  public  security,  or  annoying  to  the  citizens, 
would  be  nothing  less  than  a  tax  measure.  It  would  cease 
to  be  regulatory  in  its  nature,  and  would  therefore  be  void.^ 

§  247.  Routes  and  stands. — It  is  proper  to  ordain  cer- 
tain routes  to  be  followed  by  such  vehicles  as  tend  from  the 
nature  of  their  use  either  to  hinder  traflBc,  or  to  be  offensive 
to  passers-by.^  lu  this  category  would  fall  all  vehicles 
whose  loads  render  rapid  motion  impossible,  or  whose  loads 
are  unusually  bulky,  as  hay-wagons  or  wagons  loaded  with 
lengthy  building  material ;  wagons  used  for  transporting 
offal,  garbage,  or  fertilizers  of  offensive  odor;  and  vehicles 
of  such  gaudy  appearance  or  peculiar  appearance  as  to  tend 
to  frighten  horses. 

That  people  may  be  protected  from  imposition,  it  is  law- 
ful to  ordain  that  fixed  tariffs  must  be  charged  for  the  use 
of  vehicles  kept  for  hire  for  the  transportation  of  passengers 
or  merchandise,  and  prescribing  the  rates  for  different  dis- 
tances.^ In  such  case  the  ordinance  provision  becomes  im- 
perative and  the  drivers  of  such  vehicles  are  precluded  from 
asking  higher  rates,  and  even  from  making  a  special  con- 
tract varying  the  lawful  charges  to  the  disadvantage  of  the 
passenger.* 

(1)  Brooklyn  u.Nodine,  26  Hun,  512;  Ex  parte  Gregory,  20  Tex.  App. 
210. 

(2)  Commonwealth  v.  Stodder,  2  Cush.  562. 

(3)  Commonwealth  v  Gage,  114  Mass.  328. 

(4)  Commonwealth  z.  Duane,  98  Mass.  1. 

16 


242  MUNICIPAL   POLICE    ORDINANCES.  [§  248. 

Inasmuch  as  the  general  public  would  inevitably  suffer 
annoyance  from  the  promiscuous  and  unrestrained  solicita- 
tion of  passengers  or  trade  by  those  in  charge  of  vehicles 
used  for  hire,  it  is  lawful  to  prescribe  defined  stands  for 
hacks  and  drays,  and  to  prohibit  them  from  standing  else- 
where when  not  employed.^  But  the  location  of  such  stands 
must  be  selected  so  as  to  avoid  annoyance  to  those  whose 
premises  are  adjacent.  No  ordinance  of  this  nature  could 
legalize  any  hinderance  to  the  free  use  of  the  streets.  So, 
if  the  hacks  standing  in  their  prescribed  places  tend  to  inter- 
fere with  access  to  the  adjacent  premises  of  private  indi- 
viduals, the  ordinance  virtually  works  an  appropriation  of 
private  property  without  making  compensation,  and  is  void 
to  that  extent.^ 

Bicycles  come  within  the  reason  of  such  regulation  and 
their  use  may  be  regulated.^ 

§  248.  Construction  of  vehicle  regulations. — The  gen- 
eral propriety  and  scope  of  such  ordinances  is  evident,  but 
many  contests  arise  as  to  the  lawful  extent  of  an  ordinance 
with  reference  to  the  wording  of  a  power.  When  the 
power  enumerates  the  classes  of  vehicles  that  may  be  regu- 
lated, all  others  are  excluded,  and  construction  is  often  in- 
voked to  determine  whether  a  class  ordained  against  is 
reasonably  within  the  meaning  of  the  terms  of  the  power. 
Thus,  it  is  held  that  an  ordinance  requiring  a  license  for 
drays,  carts,  wagons,  or  other  vehicles  used  for  hire,  does 
not  include  the  delivery  wagons  of  wholesale  merchants.* 
Such  wagons  are  used  for  private  persons,  but  they  come 
within  the  reason  and  letter  of  the  ordinance  whenever  the 
merchant  makes  a  charge  for  delivery.'  An  ordinance  reg- 
ulating wagons,  drays,  carts,  and  other  vehicles  of  burden 
used  to  convey  loads,  includes  wagons  used  by  retail  grocers 

(1)  Commonwealth  v.  Matthews,  122  Mass.  60. 

(2)  Branahan  v.  Hotel  Co.,  39  0.  S.  333;  McCaffrey  v.  Smith,  41  Hun 
117.' 

(3)  Recent  unreported  case  in  New  Jersey ;  In  re  Wright,  29  Hun. 
357. 

(4)  Farwell  v.  Chicago,  71  111.  269. 

(5)  Knoxville  v.  Sanford,  13  B.  J.  Lea,  545 


^  249.]  ORDINANCES    CLASSIFIED,  ETC.  243 

for  delivering  goods  sold.^  But  when  the  same  provision 
in  the  ordinance  is  followed  by  a  provision  relative  to  fixing 
the  rates  to  be  charged,  this  evidence  of  the  legislative  in- 
tention as  to  the  scope  of  the  ordinance  would  exclude  re- 
tail delivery  wagons".*  Where  one  section  of  an  ordinance 
requires  a  license  for  keeping  a  livery-sta'ble,  to  let  out 
horses,  carriages,  etc.,  and  other  vehicles,  providing  that  it 
should  not  extend  to  drays  used  for  hire,  and  a  separate 
provision  is  made  for  the  regulation  of  drays,  it  is  held 
that  under  a  livery  license  a  wagon  might  be  let  by  the  day 
for  hauling  lumber,  without  securing  the  license  required 
for  drays  by  the  second  section  of  the  ordinance.^  Street 
cars  are  properly  vehicles.  They  may  be  regulated  under 
a  power  to  regulate  omnibuses  and  vehicles  in  the  nature 
thereof,^  or  under  a  power  to  license  hackmen,  omnibus 
drivers,  and  others  pursuing  like  occupations.' 

Under  the  designation  "  public  vehicles "  are  included 
sprinkling  carts,®  but  not  a  hotel  free  bus.' 

"  Cars"  include  steam  cars.^  A  ferry-boat  is  not  a  "  ve- 
hicle." ^  A  livery-stable  man,  who  hires  out  vehicles  by  the 
day  to  draw  ice,  is  not  a  common-carrier.^'' 

§  249.  Strays. — Perhaps,  upon  no  subject  connected 
with  municipal  powers  does  there  seem  to  be  less  uniformity 
in  adjudicated  cases  than  in  regard  to  strays,  or  animals 
found  running  at  large.  If  animals  are  at  large  upon  the 
public  streets  or  commons  of  a  populous  city,  they  are  cer- 
tainly apt  to  impede  traffic,  to  render  the  streets  filthy,  and 

(1)  Gartside  v.  East  St.  Louis,  43  111.  47. 

(2)  Joyce  v.  East  St.  Louis,  77  111.  156. 

(3)  Griffin  v.  Powell,  64  Ga.  625. 

(4)  Railway  Co.  v.  Philadelphia,  58  Pa.  119. 

(5)  Allerton  v.  Chicago,  6  Fed.  Rep.  555;  s.  c,  9  Biss.  552;  Johnson 
V.  Philadelphia,  60  Pa.  St.  445;  Provision  Co.  v.  Chicago,  88  111. 
221 ;  Munn  v.  Illinois,  94  U.  S.  113.  Cordra,  Mayor  v.  Second  Ave.  R.  R. 
Co.,  32  N.  Y.  261;   Railroad  Co.  v.  Philadelphia,  6  Phila.  238. 

(6)  St.  Louis  u.  Woodruff,  71  Mo.  92. 

(7)  Oswego  V.  Collins,  38  Hun,  171. 

(8)  Gumming  v.  Railroad  Co.,  38  Hun,  362. 

(9)  Duckwall  v.  New  Albany,  25  Ind.  283. 

(10)  Havana  v.  Vallaningham,  17  111.,  App.  62. 


244  MUNICIPAL    POLICE    ORDINANCES.  [§  249. 

to  greatly  annoy  many  who  have  occasion  to  use  the  public 
ways.  It  would  seem  most  reasonable  that  strays  should 
be  considered  per  se  nuisances,  and  that  every  municipal 
corporation  should  have  an  incidental  power  to  restrain 
them,  and  to  pass  ordinances  providing  for  reasonable  pre- 
vention of  the  evil.^ 

But  it  has  been  held  that  pounds  can  only  be  established 
under  express  power,^  and  that  ordinances  against  strays 
can  not  be  sustained  under  power  "  to  abate  nuisances," 
nor  under  power  to  pass  ordinances  for  the  "  well  regula- 
tion, interest,  health,  convenience,  etc.,"  of  the  corpora- 
tion.' These  decisions  are  based  upon  the  idea  that  an  or- 
dinanpe  of  this  nature  must,  to  be  in  any  way  effective,  au- 
thorize a  summary  proceeding  against  property,  and  that 
express  authority  must  be  given  in  order  to  warrant  such 
proceedings.  But  the  evident  impracticability  of  making 
the  remedy  other  than  summary,  and  the  evident  incon- 
venience of  having  animals  running  on  the  public  streets, 
QUght  to  establish  a  case  where  the  public  good  is  to  be 
preferred  to  the  rights  of  the  individual.  The  regulation 
of  strays  ought  to  be  considered  as  fairly  within  the  police- 
powers  vested  in  every  corporation.*  Of  course,  like  all 
other  police  powers,  the  prescribed  mode  of  exercise  must 
be  strictly  observed.^ 

However  summary  the  seizure  of  strays  may  be,  there 
must  be  some  notice  given  to  the  owner,  actual  or  con- 
structive, and  some  form  of  judicial  determination  before 
the  animal  taken  up  can  be  forfeited  and  sold  to  pay  the 
expenses  incurred  in  its  seizure  and  keeping.^   The  remedy 

(1)  Koberts  v.  Ogle,  30111.  459;  Hellen  v.  Noe,  3  Ired.  493;  Whitfield 
V.  Longest,  6  Ind.  268;  Waco  v.  Powell,  32  Tex.  258;  Gilchrist  v. 
Schneidling,  12  Kan.  263. 

(2)  White  V.  Tallman,  26  N.  J.  67. 

(3)  Collins  V.  Hatch,  18  Ohio,  523. 

(4)  Cartersville  v.  Lanham,  67  Ga  753. 

(5)  Greencastle  v.  Martin,  74  Ind.  449. 

(6)  Cotter  i).  Doty,  5  Ohio,  395 ;  Cincinnati  v.  Buckingham,  10  Ohio,, 
257;  Rosebaugh  v.  SaflBn,  10  Ohio,  32;  Jarman  v.  Patterson,  7  Monroe, 
647;  Varden  v.  Mount,  78  Ky.  86;  Donovan  v.  Vicksburg,  29  Miss.  247;. 
and  cases  cited  ante,  §§  159-161. 


§  251.]  ORDINANCES   CLASSIFIED,  ETC.  245 

is,  however,  not  confined  to  seizing  and  selling  the  stray 
itself.  The  owner  may  be  fined  for  violating  the  ordinance 
in  allowing  his  animal  to  run  at  large,  and  on  default  of 
payment  the  fine  may  be  added  to  the  amount  to  satisfy 
which  the  animal  is  sold.^ 

The  main  difiiculty  that  arises  in  enforcing  this  class  of 
ordinances  is  in  determining  whether  an  animal  is  "run- 
ning at  large"  within  the  meaning  of  the  ordinance.  In 
the  first  place,  the  animal  must  be  found  on  the  public 
streets  or  places.  An  animal  that  has  escaped  from  one 
private  inclosure  to  another  is  not  at  large.^  An  animal 
that  is  accompanying  some  person  upon  the  street  is  at 
large  as  soon  as  the  circumstances  show  that 'it  is  beyond 
that  person's  control.  The  test  is  simply  whether  the  per- 
son has  immediate  control  of  the  animal.  A  dog  running 
close  to  his  master,  or  a  trained  horse  following  him,  would 
not  be  at  large.' 

§  250.  Nuisances. — The  power  to  prevent  and  remove 
nuisances  is  one  of  the  most  important  to  be  noticed  under 
the  general  head  of  police  powers.  It  is  difiicult  to  draw 
any  distinct  class  line  between  the  various  police  powers, 
for  the  same  act  may  have  several  bearings.  Thus,  a 
building  which  violates  the  fire  limit  ordinance  may  also  be 
in  such  condition  of  dilapidation  as  to  be  jper  se  a  nuisance, 
or  dangerous  to  health. 

§  251.  Definition. — All  things  are  nuisances  which  are 
detrimental  to  the  health,  dangerous  to  life,  or  productive 
of  serious  inconvenience.*  Municipal  corporations  have 
inherent  power  as  absolutely  essential  to  the  corporate  pur- 
poses to  take  measures  to  remove  nuisances.^  J!:Tor  is  the 
power  restricted  to  simple  abatement.     It  extends  to  all 

(1)  Roberts  v.  Ogle,  30  111.  359;  Kinder  v.  Gillespie,  63  111.  88;  Waco 
V.  Powell,  32  Tex.  258. 

(2)  Shepherd  v.  Hees,  12  Johns.  433. 

(3)  Commonwealth  v.  Dow,  10  Mete.  382;  Welsh  w.  Railway  Co.,  53 
la.  632. 

(4)  State  V.  Jersey  City,  29  N.  J.  170. 

(5)  Kennedy  v.  Phelps,  10  La.  Ann.  227. 


246  MUNICIPAL   POLICE   ORDINANCES.  [§  252. 

steps  necessary  to  prevent  nuisances  from  arisiusr.  -An  or- 
dinance may  be  passed  in  advance  looking  toward  preven- 
tion.^ Though,  as  has  been  held  in  Illinois,  the  power  to 
abate  nuisances  does  not  warrant  an  ordinance  prohibiting 
the  establishment  of  a  cemetery  .^  This  power,  like  all  others, 
is  not  self-executing,  and  an  actual  abatement  can  not  be 
made  unless  an  ordinance  has  first  been  passed  defining  the 
mode  of  procedure,  and  establishing  the  law.^  When  such 
ordinance  once  exists,  the  corporation  may  intrust  the  exe- 
cution to  the  police  officers,  or  it  may  direct  the  abatement 
of  certain  nuisances  as  they  may  arise.  And  the  resolution 
expressing  the  corporate  determination  that  a  specified 
thing  is  a  nuisance  is  legal.  It  must  not  be  confused  with 
an  ordinance  directed  against  an  individual,  which  would 
be  bad.* 

Unless  general  power  is  given  to  punish  for  violations  of 
all  ordinances,  the  single  power  to  abate  nuisances  does 
not  carry  with  it  the  power  to  punish  the  person  at  whose 
instance,  or  by  whose  neglect,  a  certain  nuisance  exists.^ 

§  252.  Must  be  an  actual  nuisance. — N"uisances  can 
not  be  declared  in  contravention  of  the  general  law ;  for 
instance,  a  railroad  expressly  authorized  by  state  law  can 
never  be  of  itself  a  nuisance,  though  it  might  be  so  con- 
ducted as  to  create  nuisances.^ 

Neither  may  the  power  be  exercised  unrestrfctedly. 
When  the  corporation  is  authorized  to  abate  nuisances  in 
any  manner  deemed  expedient,  only  such  means  as  are  for 
the  public  good  are  lawful.  ITo  wanton  or  unnecessary 
injury  may  result  from  the  means  adopted.^  Due  provision 
may  be  taken  to  prevent  any  business  or  structure  from  be- 

(1)  Gregory  v.  City  of  N.  Y.,  40  N.  Y.  273. 

(2)  Lake  View  v.  Letz,  44  111.  82. 

(3)  Lake  v.  Aberdeen,  57  Miss.  260. 

(4)  Kennedy  v.  Phelps,  10  La.  Ann.  227. 

(5)  Nevada  v.  Hutchins,  59  Ga.  506. 

(6)  State  V.  Jersey  City,  29  N.  J.  170;  Ward  v.  Little   Rock,  41  Ark. 
526. 

(7)  Babcock  v.  Buffalo,  56  N.  Y.  268;  affirming  Babcock  v.  Buffalo,  1 
Sheldon,  317. 


§   253.]  ORDINANCES    CLASSIFIED,    ETC.  247 

coming  a  nuisance,  but  must  not  go  so  far  as  to  practically 
prohibit.  Businesses  that  are  lawful  per  se,  and  which 
may  be  so  conducted  as  to  be  free  from  nuisance,  can  only 
be  so  regulated  as  to  prevent  their  improper  conduct.^ 
Power  to  compel  the  cleansing  and  abating  of  slaughter 
houses  whenever  necessary  to  the  health  of  the  city  can 
only  be  exercised  when  an  actual  nuisance  exists.^  The 
nuisance  may  be  abated  when  it  arises,  but  care  must  be 
taken  that  no  unnecessary  damage  results.  The  nuisance 
alone  may  be  proceeded  against,  and  the  cause  is  to  be 
separated  if  possible  from  its  surroundings.  So,  if  a  certain 
trade  or  business  becomes  a  nuisance,  the  trade  or  business 
may  be  stopped,  but  the  remedy  would  not  extend  to  the 
place  or  building  in  which  the  nuisance  is  maintained. 
Buildings  can  never  be  removed  simply  because  they  have 
been  put  to  an  unlawful  use.^ 

A  corporation  has  no  right  to  declare  that  to  be  a  nui- 
sance which  is  not  so  in  fact.  This  power  is  exercised  in 
derogation  of  property  rights,  and  must  be  strictly  fol- 
lowed. ITuisances  are  declared  at  the  risk  of  the  corpora- 
tion, and  its  determination,  however  formal,  is  never  con- 
clusive.* Its  judgment  is  always  subject  to  revision.^  And 
if  in  fact  erroneous,  the  corporation  owes  restitution  to  all 
who  have  suffered  injury  to  their  property  rights.  But 
"  in  doubtful  cases,  where  the  thing  may  or  may  not  be  a 
nuisance,  depending  upon  a  variety  of  circumstances 
requiring  judgment  and  discretion  on  the  part  of  the  town 
authorities  in  exercising  their  legislative  functions,  their 
action  would  be  conclusive  of  the  question." 


6 


§  253.  Judicial  determination. — There   should,  then, 

(1)  Weil  V.  Ricord,  24  N.  J.  Eq.  169. 

(2)  Wreford  v.  People,  14  Mich.  41. 

(3)  Miller  v.  Burch,  32  Tex.  208. 

(4)  Howard  v.  Robbins,  1  Lans.  63. 

(5)  Everett  v.  Council    Bluffs,  46   la.  66 ;  Pye  v.  Peterson,  45  Tex. 
312;  State  v.  Mott,  61  Md.  297;  Davis  v.  Clifton,  8  U.  C.  C.  P.  236. 

,    (6)  Railway  Co.  v.  Lake  View,  105  111.  207;  s.  c,  44  Am.  Rep.  788; 
Denver  v.  Mullen,  7  Col.  345. 


248  MUNICIPAL   POLICE   ORDINANCES.  [§  254. 

always  be  some  judicial  determination  of  the  existence  of 
a  nuisance.^  A  board  of  health  vested  with  power  to  pro- 
ceed against  nuisances  must  give  notice  to  the  owner  or 
party  in  control,  and  must  allow  him  an  opportunity  to  be 
heard.^  An  ordinance  that  authorizes  the  closins:  of  a 
saloon  by  force,  without  a  prior  judicial  determination  that 
it  is  a  nuisance,  is  void.^  It  is  even  held  that  a  resolutiou 
for  the  removal  of  a  person  sick  with  an  infectious  disease 
is  void  unless  he  consent  to  the  removal.*  But  this  i^ 
surely  not  the  accepted  rule,  especially  not  during  the 
prevalence  of  such  disease,  when  public  health  and  safety 
make  such  removal  an  imperative  necessity.  But  if  % 
thing  is  in  fact  a  nuisance,  and  its  abatement  is  effected 
without  doing  unnecessary  damage,  the  fact  that  the  owner 
was  not  notified  would  only  be  so  far  material  as  to 
throw  the  cost  of  removal  on  the  corporation.  In  or- 
der  to  impose  the  cost  on  the  owner,  he  must  be  first 
given  a  reasonable  opportunity  to  remove  the  tiuisance 
himself.^ 

Under  the  Georgia  statute,  a  municipal  corpoiacion  may 
punish  for  continuing  a  nuisance,  before  notice  is  given  to 
abate  it,  but  not  after,  when  such  continuance  becomes  a 
penal  offense.*' 

§  254.  What  are  nuisances. — The  follo;ving  things 
have  been  held  to  be  nuisances  and  properly  prohibited  by 
ordinance :  Exposing  articles  for  sale  that  are  in  a  condition 
unfit  for  use;^  public  exhibition  of  stud  horses;*  depositing 
rubbish   except  in   places   designated  by  some   board   or 

(1)  Gates  V.  Milwaukee,  10  Wall.  497;  Monroe  v,  Gerspach,  33  La. 
Ann.  1011. 

(2)  People  V.  Board  of  Health,  33  Barb.  344;  Weil  v.  Ricord,  24  N. 
J.  Eq.  169. 

(3)  Baldwin  v.  Smith,  82  111.  163. 

(4)  Boom  V.  Utica,  2  Barb.  104. 

(5)  Baumgartner  v.  Hasty,  100  Ind.  575. 

(6)  Vason  v.  Augusta,  38  Ga,  542. 

(7)  Shillito  V.  Thompson,  L.  R.,  1  Q.  B.  Div.  12. 

(8)  Nolin  V.  Franklin,  4  Yerg.  163  ;  Ex  parte  Shrader,  33  Cal.  279. 


§  256.]  ORDINANCES   CLASSIFIED,   ETC.  249 

officer;^  smoke  from  chimneys;^  bouses  of  ill-fame;^  swine 
running  at  large  in  the  streets;*  growing  rice  within  city 
limits ;  keeping  swine.* 

§  255.  What  are  not  nuisances  per  se, — Many  things 
that  are  not  nuisances  yer  se  may  become  nuisances  under 
special  circumstances.  Such  are  a  blacksmith's  shop  f  a 
cornice  projecting  over  the  street  f  keeping  pigs  or  cows 
in  stables  in  close  proximity  to  dwelling-houses;^  burning 
lime  f  cemeteries.^" 

In  order  to  make  this  class  of  things  nuisances  it  must 
appear  that  they  cause  some  actual  inconvenience  or  dis- 
comfort, or  some  actual  damage  to  life  or  health.^^ 

The  consideration  of  what  acts  amount  to  nuisances  is 
one  involving  too  much  space  to  be  treated  at  length. 
Reference  must  be  made  to  the  text-books  on  that  subject. 

§  256.  Nature  of  license  power. — Among  other  means 
in  common  use  to  effect  the  purposes  of  police  regulation 
is  the  j2.rohibition,  except  under  license  from  the  corpora- 
tion, of  such  occupations  and  pursuits  as  need  to  be  con 
ducted  with  more  than  ordinary  care.  The  power  t(» 
license  must  be  granted  in  express  terms,  although  it  il 
merely  a  police  power.  It  is  one  mode  of  regulation,  but 
one  that  can  not  be  exercised  under  general  police  author- 

(1)  Ex  parte  Casinello,  62  Cal.  538. 

(2)  Harmon  v.  Chicago,  110  111.  400. 

(3)  !McAlister  v.  Clark,  33  Conn.  91. 

(4)  Roberts?;.  Ogle,  30  111.  459;  Hellen  v.  Noe,  3  Ired.  493 j  Whit- 
field V.  Longest,  6  Ired.  268 ;  Waco  v.  Powell,  32  Tex.  258.  Contra, 
Collins  V.  Hatch,  18  Ohio,  523. 

(5)  Green  v;  Savannah,  6  Ga.  1 ;  St.  Louis  v.  Stern,  3  Mo.  App.  48. 

(6)  Terre  Haute  v.  Turner,  36  Ind.  522. 

(7)  Grove  v.  Ft.  Wayne.  45  Ind.  429. 

(8)  McKnight  v.  Toronto.  3  Ont.  284. 

(9)  State  V.  Mott,  61  Md.  297. 

(10)  Musgrave  v.  Church,  10  La.  Ann.  244. 

(11)  Ewbanks  v.  Ashley,  36  111.  177;  Poyer  v.  Des  Plaines,  18  111, 
App.  225  ;  Everett  v.  Council  Bluffs,  46  la.  66. 


250  MUNICIPAL   POLICE   ORDINANCES.  [§  256. 

ity.^  And  like  all  other  express  powers  it  must  be 
strictly  followed.^  So,  power  to  enact  ordinances  "  relative 
to''  certain  occupations  does  not  warrant  the  passage  of  an 
ordinance  imposing  a  license.'  Even  a  power  "  to  make 
such  assessments  for  the  safety,  convenience,  benefit,  and  ad- 
vantage of  said  city  "  as  may  be  deemed  expedient,  would  not 
suffice.*  But  it  must  not  be  supposed  that  the  word 
"  license  "  must  itself  appear  in  the  grant  of  power,  for  the 
right  to  subject  occupations  to  licenses  may  be,  and  is,  con- 
ferred by  a  grant  of  power  superior  in  grade  to  that  of 
licensing.  For  example,  a  grant  of  entire  co??^ro?,  or  of  power 
to  suppress  and  restrain,  would  enable  the  corporation  to 
adopt  any  mode  of  regulation  within  the  limit  of  those 
powers,  license  included."  So,  a  license  would  be  lawful 
under  power  to  declare  the  selling  of  certain  commodities 
a  nusiance.®  In  Illinois  the  courts  have  gone  to  the  ex- 
treme limit,  and  have  even  held  that  power  to  license  is 
implied  by  power  to  regulate,'^  or  power  to  restrain.^  The 
claim  is  often  made  that  a  distinction  should  be  drawn  in 
this  respect  between  such  occupations  as  afford  special  op- 
portunities to  defraud  and  impose  upon  the  public  and 
those  of  a  more  harmless  nature,  but  there  is  no  reason  for 
maintaining  such  a  distinction.  The  same  degree  of  regu- 
lation can  be  attained  by  other  means  than  licenses,  even 

(1)  Railway  Co.  v.  Hoboken,  41  N.  J.  L.  71;  Fowle  v.  Alexandria,  3 
Pet.  399  ;  Sanders  v.  Butler,  30  Ga.  679;  Ordinary  v.  Retailers,  42  Ga.  325. 

(2)  Jackson  u.  Bowman,  39  Miss.  671 ;  House  v.  State,  41  Miss.  737; 
Dill.  Mun.  Corp.  361. 

(3)  Dill.  Mun.  Corp.  361. 

(4)  Charleston  v.  Oliver,  16  S.  C.  47. 

(5)  Martin  v.  People,  88  111.  390;  Burlington  v.  Lawrence,  42  la.  681; 
Smith  V.  Madison,  7  Ind.  86 ;  Ex  parte  Mount,  66  Cal.  448. 

(6)  Martin  v.  People,  88  111.  390. 

(7)  Chicago  Packing  Co.  v.  Chicago,  88  111.  221. 

(8)  Mt.  Carmel  v.  Wabash  Co.,  50  111.  69.  Wherever  the  right  to 
license  is  sustained  under  a  general  power  of  regulation,  the  provisions 
of  the  license  ordinance  must  be  strictly  adapted  to  the  maintenance 
of  good  order,  and  only  reasonable  means  to  that  end  employed. 
State  V.  Hoboken,  33  N.  J.  280.  "  To  tax  "  does  not  mean  "  to  license." 
Leonard  v.  Canton,  35  Miss.  189. 


§  258.]  ORDINANCES   CLASSIFIED,    ETC.  251 

though  perhaps  more  arduous ;  and,  without  express  author- 
ity 80  to  do,  no  lawful  business  should  be  prohibited. 

§  257.  Nature  of  licenses. — The  power  to  license  de- 
pends upon  a  concurrent  power  to  prohibit.  The  business 
or  occupation  is  declared  unlawful,  except  upon  compli- 
ance with  certain  condition.  A  license,  then,  "  is  a  privi- 
lege granted  to  carry  on  some  occupation  or  exercise  some 
right  which  could  not  be  legally  exercised  without  the 
grant  of  such  license.  The  pursuit  of  the  prohibited  occu- 
pation becomes  a  franchise  in  the  power  of  the  municipality 
to  grant,  and  the  license  fee  is  the  price  exacted  for  the 
right  to  exercise  the  franchise."  ^ 

A  license  is  in  no  sense  a  tax.^  The  distinction  between 
the  two  is  of  the  utmost  importance,  and  is  the  turning 
point  upon  which  the  validity  of  a  large  class  of  license 
ordinances  depends.  The  basis  of  all  license  ordinances  is 
police  regulation,  and  all  are  valid  which  do  not  exceed 
the  proper  limits  of  such  regulation.  The  questions  to 
be  propounded  in  order  to  test  such  ordinances  are: 

1.  Is  the  ordinance  provision  within  the  express  author- 
ity of  the  power?  If  so,  it  is  valid,  however  high  the  fee 
imposed,  or  however  severe  the  conditions. 

2.  If  the  amount  of  the  fee  demanded  or  the  conditions 
imposed  are  not  expressly  authorized  by  the  power  to  en- 
act the  ordinance,  do  they  exceed  the  limits  of  reasonable 
regulation  ? 

§  258.  Must  not  amount  to  a  tax. — When  rightfully 
imposed  the  license  fee  will  never  be  construed  to  be  a  tax 
within  the  meaning  of  constitutional  provisions,  although 
the  term  "  license  tax  "  is  frequently  used  to  designate  it.' 

(1)  Desty  Tax,  §  193;  Chilvers  v.  People,  11  Mich.  43. 

(2)  Desty  Tax,  §  193;  Coe  v.  Hall,  103  111.  30;  State  v.  Herod,  29 
la.  123 ;  Livingston  v.  Trustees,  99  111.  564;  Ferry  Co.  v.  East  St.  Louis, 
102  111.  560;  East  St.  Louis  v.  Trustees,  102  111.  489;  Walker  v. 
Springfield,  94  111.  364;  Ducat  v.  Chicago,  48  111.  172;  Johnson  v.  City 
Leg.  Int.  1869,  p.  269. 

(3)  Distilling  Co.  v.  Chicago,  112  111.  19;  Leavenworth  v.  Booth,  15 
Kan.  627;  Fort  Smith  v.  Ayers,  43  Ark.  82;  Ash  w.  People,  11  Mich  347. 


252  MUNICIPAL    POLICE    ORDINANCES.  [§  259. 

And  courts  will  not  interfere  with  the  discretion  of  the 
•council  unless  the  amount  imposed  is  plainly  unreasonable.^ 
A  tax  is  levied  for  the  purposes  of  revenue,  and  the  power 
to  levy  taxes  must  be  granted  in  the  plainest  language,  the 
policy  of  some  states  even  forbidding  by  constitutional  in- 
hibition any  delegation  of  the  power.  Power  to  license 
gives  no  right  to  enact  ordinances  for  the  purpose  of  in- 
creasing the  municipal  revenues.*  It  is  within  the  province 
of  the  court  to  decide  in  each  case  whether  the  amount  of 
the  fee  is  upon  its  face  so  high  as  to  make  it  in  eftect  a 
revenue  measure.  But  a  fee  may  be  entirely  reasonable  as 
a  police  regulation,  and  at  the  same  time  in  fact  swell  the 
municipal  revenues.  The  precise  extent  to  which  the  ordi- 
nance may  go  is  the  point  npon  which  the  courts  of  the 
dift'erent  states  vary,  and  in  regard  to  which  it  is  impossible 
to  lay  down  exact  rules.  The  standard  is  reasonableness,  in 
itself  a  very  indefinite  and  unsatisfactory  basis,  varying,  as  it 
must,  with  the  individual  opinions  of  those  called  upon  to 
judge  and  with  the  character  of  the  thing  to  be  regulated.^ 

§  259.  What  amount  may  be  charged. — The  strictest 
rule  limits  the  amount  of  the  fee  to  the  actual  expense  of 
issuing  the  license.  This  is  upon  the  theory  that  the  sole 
object  of  regulation  by  licensing  is  to  prevent  improper 
persons  from  obtaining  permission  to  carry  on  the  pro- 
hibited trade,  and  that  this  may  be  accomplished  by  the 
exercise  of  discretion  in  the  selection  of  the  licensees  by 
the  officer  who  issues  the  licenses.  This  rule  restricts  the 
lawful  amount  to  a  very  small  sum  and  is  adopted  by  very 
few  states,*  and  is  only  recognized  in  some  of  the  earlier 
decisions. 

(1)  Burlington  v.  Insurance  Co.,  31  la.  102;  Mankato  u.  Fowler,  32 
Minn.  364. 

(2)  Mankato  v.  Fowler,  32  Minn.  364;  Van  Hook  v.  Selma,  70  Ala. 
361;  Railway  v.  Hoboken,  41  N.  J.  71 ;  Burlington  v.  Insurance  Co.,  31 
la.  102.  But  see  Ferry  Co.  v.  East  St.  Louis,  102  111.  560;  Lynchburg 
V.  Railway  Co.,  80  Va.  237. 

,(3)  Kitson  V.  Ann  Arbor,  26  Mich.  325;  Railway  v.  Hoboken,  41  N. 
J.  71. 

(4)  Commonwealth  v.  Stodder,  2  Cush.  562;  Mobile  v.  Yuille,  3 
Ala.  137. 


§  259.]  ORDINANCES    CLASSIFIED,  ETC.  25S 

The  wider  and  almost  universally  adopted  rule  recognizes 
the  fact  that  different  occupations  need  different  restrictions, 
varying  with  the  character  of  the  people  and  the  size  of 
the  city,  and  reposes  a  very  broad,  generous  confidence  in 
the  judgment  of  the  law-makers  as  to  the  needs  of  each 
particular  case.  Thus  the  amount  charged  often  swells  the 
local  treasury  without  exceeding  the  bounds  of  proper  reg- 
ulation. As  was  said  by  Gholson,  J.,  in  Baker  v.  Cincin- 
nati, 11  O.  S.  534  :  "  Things  licensed  may  be  such  as  should 
only  be  pernjitted  under  the  regulation  or  supervision  of 
public  functionaries.  A  tax  or  charge  may  have  reference 
to  such  regulation  and  supervision.  Such  is  the  case  of  ex- 
hibitors of  shows  and  performances.  An  inquiry  has  to 
be  made  into  the  character  of  those  who  propose  to  ex- 
hibit, and  as  to  the  nature  of  the  thing  exhibited.  Then 
the  exhibition  may  require  additional  attention  from  those 
intrusted  with  the  care  of  public  peace  to  prevent  disorder 
and  disturbance.  The  burden  thus  devolved  on  public 
officials,  requiring,  perhaps,  an  increase  in  their  number  or 
compensation,  for  the  benefit  of  exhibitors  of  shows  or  per 
formances  may  justly  authorize  a  charge  beyond  the  mere 
expense  of  filling  up  a  blank  license.  The  same  principle 
that  would  authorize  a  charge  for  one  extends  to  the  other. 
To  say  that  it  is  a  tax  and  goes  into  the  public  treasury 
does  not  disprove  this  object.     There  is  no  magic  in  names." 

The  holding  in  this  case  is  that  generally  recognized  as 
the  true  rule.  The  amount  of  the  fee  should  depend  on 
the  nature  of  the  business,  and  should  not  be  scrutinized 
too  narrowly.  A  reasonable  addition  to  cover  the  cost  of 
police  supervision  may  always  be  raade.^  The  whole  ex- 
pense attending  the  additional  supervision  should  be  met.^ 

The  law  is  stated  very  clearly  in  Van  Hook  v.  Selma,  70 
Ala.  361 ;  s.  c,  45  Am.  Rep.  81,  as  follows :  "  We  declare 
the  true  rule  to  be,  in  the  case  of  useful  trades  and  em- 

(1)  Van  Hook  v.  Selma,  70  Ala.  361;  Ash  v.  People,  11  Mich.  347; 
In  re  Wan  Yin,  22  Fed.  Rep.  701 ;  Cincinnati  v.  Bryson,  15  Ohio,  625; 
Johnson  v.  Philadelphia,  60  Pa.  St.  445  ;  comparatively  strict  holding 
ik  Mays  v.  Cincinnati,  1  O.  S.  268 ;  Fort  Smith  v.  Ayers,  43  Arls.  82. 

(2)  Ash  V.  People,  11  Mich.  347. 


254  MUNICIPAL   POLICE   ORDINANCES.  [§  260. 

ployments,  and  a  fortiori  iu  other  cases,  that  as  an  exercise 
of  police  power  merely,  the  amount  exacted  for  a  license, 
though  designed  for  regulation  and  not  for  revenue,  is  not 
to  be  confined  to  the  expense  of  issuing  it;  but  that  a 
reasonable  compensation  may  be  charged  for  the  additional 
expense  of  municipal  supervision  over  the  particular  busi- 
ness or  vocation  at  the  place  where  it  is  licensed.  For  this 
purpose,  the  services  of  officers  may  be  required  and  inci- 
dental expenses  may  be  otherwise  incurred  in  the  faithful 
enforcement  of  such  police  inspection  or  superintendence." 

The  amount  thus  reached  may  be  inuch  greater  than  the 
mere  cost  of  issuing,  and  a  considerable  surplus  fund  may 
go  into  the  treasury  to  swell  the  general  revenue  fund.* 

The  Kansas  courts  have  even  gone  so  far  as  to  hold  that 
the  amount  of  the  fee  should  include  not  only  the  value  of 
the  labor  and  material  involved  in  allowing  and  issuing  the 
license,  and  the  value  of  the  inconvenience  and  cost  of 
additional  supervision,  but  also  the  value  of  the  franchise 
granted  to  the  licensee,  and  that  the  fee  could  even  be  still 
increased  so  as  to  prevent  improper  persons  from  engaging 
in  the  business.^ 

These  additional  elements  are,  however,  justly  excluded 
from  the  general  rule.  It  certainly  adds  nothing  to  the 
burden  of  regulation,  that  the  privilege  granted  is  of  spe- 
cial benefit  to  the  licensee,  and  in  proper  persons  can  be 
excluded  from  the  licensed  business  by  the  exercise  of  dis- 
cretion on  the  part  of  the  ministerial  officer  charged  with 
the  duty  of  allowing  the  licenses,  although  they  could  law-, 
fully  refuse  only  those  who  were  notoriously  and  evidently 
unfit  to  be  vested  with  the  privilege.  The  Kansas  doctrine 
is  expressly  based  on  the  theory  that  a  license  is  "  a  sale 
of  a  benefit  or  privilege  to  a  person  who  would  otherwise 
not  be  entitled  to  the  same." 

§  260.  Examples. — To  illustrate  the  extent  to  which  the 
courts  allow  license  fees  to  exceed  the  bare  cost,  and  to 

(1)  Leavenworth  v.  Booth,  15  Kan.  627;  Johnson  v.  Philadelphia,  60 
Pa.  St.  445. 

(2)  Leavenworth  v.  Booth,  15  Kan.  627. 


§  262.]  ORDINANCES   CLASSIFIED,   ETC.  255 

which  they  trust  to  the  judgment  of  the  council,  the 
following  fees  have  been  sustained :  $5  on  every  meat 
market ;  ^  $200  on  pawnbrowkers  ;  ^  $63.50  for  a  six  months' 
license  for  a  theater ;'  $5  to  $10  on  milk  peddlers;*  $500 
a  year  for  retail  liquors ;®  $500  per  year  for  a  theater;*  $500 
per  year  for  brewer's  license;^  $300  for  the  privilege  of 
keeping  billiard  tables;^  $25  for  sale  of  liquors;^  $15 
for  each  peddler  ;^''  $50  a  year  on  each  street  car  used  by 
street  railway  companies ; "  $1,000  annually  on  a  theater 
under  power  to  license  "  on  such  terms  and  conditions  as 
may  seem  just  and  reasonable."  ^^ 

§  261.  The  license. — The  grant  of  a  license  is  usually  evi- 
denced by  a  written  certificate,  statii:^  the  amount  paid,  the 
name  of  the  licensee,  the  duration  of  the  license  and  the  par- 
ticular franchise  or  privilege  granted.  Still,  it  is  not  essential 
that  the  license  should  be  in  writing.^^  And  when  so  evi- 
denced, its  form  and  manner  of  execution  are  imma- 
terial.^* 

§  262.  The  ordinance. — Whenever  power  to  license  cer- 
tain occupations  is  given  to  a  municipal  corporation,  it  be- 
comes discretionary  with  the  council  to  exercise  the  power. 

(1)  Ash  «  People,  11  Mich.  353. 

(2)  Van  Baalen  v.  People,  40  Mich.  258. 

(3)  Baker  v.  Cincinnati,  1 1  0.  S.  534. 

(4)  People  V.  Mulholland,  82  N.  Y.  324. 

(5)  Wiley  v.  Owens,  39  Ind.  429;  Perdue  v.  Ellis,  18  Ga.  586. 

(6)  Hospital  V.  Stickney,  2  La.  Ann.  550. 

(7)  Distilling  Co.  v.  Chicago,  112  111.  19. 

(8)  In  re  Neilly,  37  U  C.  Q.  B.  289. 

(9)  Ex  parte  Benninger,  64  Cal.  291. 

(10)  People  V.  Russell,  49  Mich.  617. 

(11)  Allerton  v.  Chicago,  9  Biss.  552;  s.  c,  6  Fed.  Eep.  555 ;  Railway 
Co.  V.  Philadelphia,  58  Pa.  St.  119;  .Johnson  w.  Philadelphia,  60  Pa.  St. 
445.  In  New  York  the  contrary  is  held  as  to  street  cars  under  an  or- 
dinance imposing  the  same  amount.  Mayor  v.  Railway  Co.,  32  N.  Y. 
261. 

(12)  Boston  V.  SchaflFer,  9  Pick.  4l5. 

(13)  Boston  V.  SchaflFer,  9  Pick  415. 

(14)  Swarth  v.  People,  109  111.  621. 


256  MUNICIPAL   POLICE   ORDINANCES.  [§  263. 

The  necessary  degree  of  police  regulation  could  often  be 
attained  by  other  local  means.  And  when  the  license 
power  extends  to  businesses  which  are  unlawful  under  the 
state  laws,  a  simple  local  option  is  thereby  conferred,  which 
is  in  nowise  mandatory.^ 

Power  to  license  includes,  as  incident  thereto,  power  to  de- 
termine the  exact  sum  to  be  enacted  and  extent  and  duration 
of  the  privilege.^  This  power  must  be  conclusively  exercised 
by  the  council,  and  the  main  features  of  the  regulation  in- 
corporated in  the  ordinance.  The  ordinance,  too,  must  he 
general  in  its  terras,  and  its  benefits  capable  of  enjoyment 
by  any  one  who  is  willing  to  comply  with  its  requirements.' 
The  licensees  can  not  be  nominated  b}'  the  ordinance.* 
Where  the  power  is  silent  as  to  the  manner  in  which  it 
should  be  executed,  the  amount  of  the  license  may  be  fixed 
by  resolution  as  well  as  ordinance.^ 

§  263.  Discretion  in  ofi&cers. — As  has  been  already 
stated  no  discretionary  powers  should  be  vested  in  the  offi- 
cers whose  duty  it  is  to  execute  the  provisions  of  ordinances, 
and  the  rule  is  entirely  applicable  to  this  class  of  ordi- 
nances. The  ordinance  itself  should  specify  every  con- 
dition of  the  license  and  the  officer  should  be  merely 
intrusted  with  the  duty  of  issuing  licenses  to  all  who  com- 
ply with  the  prescribed  conditions.  If  it  is  feared  that  irre- 
sponsible and  unprincipled  persons  may  thus  receive  rights 
whose  exercise  in  their  hands  might  be  injurious  to  the 
public,  the  remedy  can  not  be  provided  by  placing  a  dis- 
cretion in  the  hands  of  the  ministerial  officer,  but  lies  with 
the  council  itself.  A  bond  may  be  required  of  the  appli- 
cant conditioned  upon  the  proper  conduct  of  the  business 

(1)  Louisville  V.  McKean,  18  B.  Mon.  10. 

(2)  Boston  V.  Schafier,  9  Pick.  415;  Darling  v.  St.  Paul,  19  Minn.  389. 

(3)  The  ordinance  should  be  general  and  uniform,  and  not  discrimi- 
nating, but  it  need  not  be  so  general  that  all  persons  complying  with 
its  terms  may  receive  the  license,  without  regard  to  their  moral  fitness. 
Crotty  V.  People,  3  111.  App.  465. 

(4)  In  re  Coyne,  9  U.  C.  Q.  B.  448. 

(5)  Burlington  v.  Insurance  Co.,  31  la.  102. 


§  263.]  ORDINANCES    CLASSIFIED,   ETC.         .  257 

licensed,  or  the  ordinance  may  provide  for  a  forfeiture  of 
the  license  ipse  facto  in  case  the  business  privilege  is  mis- 
used. The  expression  in  the  ordinance,  "which  license 
shall  be  granted  by  the  mayor,"  makes  the  issuing  of  a 
license  to  every  comer  mandatory  upon  the  mayor.^  But, 
if  discretion  is  rightfully  vested  in  the  mayor,  he  violates 
no  rights  by  refusing  an  applicant.^  And  it  has  been  held 
in  Alabama  that  a  note  may  be  taken  for  the  amount 
of  the  license  fee,  to  be  collected,  if  necessary,  by  suit  in 
assumpsit.'  An  early  case  in  Iowa  holds  that  the  mayor 
may  lawfully  be  vested  with  a  discretion,  within  specified 
limits,  as  to  the  amount  to  be  paid  for  auction  licenses,*  but 
a  similar  discretion  in  regard  to  peddlers'  licenses  was 
defeated  in  a  later  case,*  and  the  rule  may  be  considered 
universal  that  no  judicial  discretion  may  be  conferred  upon 
the  officer  issuing  the  license.® 

Even  the  council  itself  can  not  lawfully  limit  the  num- 
ber of  licenses  to  be  granted.  Its  power  extends  only  to 
the  prescription  of  conditions.^  And  when  they  have 
power  "to  limit  the  number  of  licenses,"  under  express 
grant,  the  language  will  be  strictly  construed,  and  at  least 
two  licenses,  to  comply  with  the  use  of  the  word  in  the 
plural,  must  be  authorized.^  But  if  authorized  to  grant  or 
refuse  a  license,  power  is  thereby  conferred  to  grant  an 

(1)  Commonwealth  v.  Stokley,  12  Phila.  316. 

(2)  People  V.  New  York,  7  How.  Pr.  81. 

(3)  Powers  v.  Decatur,  54  Ala.  214. 

(4)  Decorah  v.  Dunstan,  38  la.  96. 

(5)  State  Center  v.  Barenstein,  66  la.  249. 

(6)  Tt  may  delegate  its  authority  to  issue  licenses,  by  requiring  five 
citizens  to  sign  a  petition  therefor,  and  allowing  the  officers  to  investi- 
gate the  character  of  the  applicant.  Such  provisions  only  relate  to  the 
mode  of  applying  for  the  license.  In  re  Bickerstaff,  11  Pac.  Rep.  393, 
Cal.  1886.  But  an  ordinance  is  void  which  provides  that  the  mayor 
shall  license  entertainments,  but  only  at  fair  times,  and  then  not,  if 
three  citizens  should  so  petition.  This  places  the  discretion  entirely 
in  the  hands  of  the  citizens.     Elwood  v.  Bullock,  6  Q.  B.  383. 

(7)  In  re  Barclay,  12  U.  C.  Q.  B.  86;  In  re  Greystock,  12  U.  C.  Q.  B. 
458 ;  In  re  Brodie,  38  U.  C.  Q.  B.  580. 

(8)  Terry  v.  Haldimand,  15  U.  C.  Q.  B.  380.  For  further  considera- 
tion of  the  discretion  that  may  be  vested  in  ministerial  officers,  see  §  13. 

17 


258  MUNICIPAL    POLICE    ORDINANCES-  [§  264. 

exclusive  license.^     Mere  power  "  to  license  "  does  not  in- 
clude power  to  enact  a  monopoly.^ 

§  264.  The  penalty. — Like  all  other  classes  of  ordi- 
nances that  aim  at  pohce  regulation,  ordinances  which  de- 
mand a  license  fee  as  a  condition  to  engaging  in  some  pro- 
hibited business,  may  be  enforced  by  proper  penalties. 
And  the  same  modes  of  punishment  for  an  omission  to 
take  out  a  license  may  be  adopted  as  would  be  lawful  for 
other  offenses  against  local  laws.^  This  is  based  upon  the 
theory  that  the  business  authorized  to  be  regulated  by 
license,  becomes  unlawful  without  the  license,  immediately 
upon  the  exercise  of  the  power  vested  in  the  corporation.* 

"Where  imprisonment  may  be  prescribed  for  other  of- 
fenses, it  may  also  for  any  violation  of  a  license  ordinance.' 

In  prosecutions  for  failure  to  secure  a  license  no  ques- 
tion of  evil  intent  arises.  The  essence  of  the  offense  con- 
sists in  pursuing  the  avocation  without  a  license,  when 
one  is  required  by  law.^ 

It  is  held  in  England  that  the  offense  of  pursuing  a 
prohibited  business  without  the  necessary  license  can  only 
be  punished  once  during  the  period  for  which  the  license 
should  have  been  secured.'  But  this  can  not  be  taken  as 
the  American  rule  ;  for,  under  the  policy  of  our  laws,  the 
punishment  is  a  penalty,  and  in  nowise  acts  as  a  license. 
The  payment  of  a  fine  ought  not  to  be  considered  as  a  sub- 
stitute for  the  payment  of  the  required  license  fee. 

(1)  Ferry  Co.  v.  Davis,  48  la.  133. 

(2)  Logan  v.  Pyn^,  43  la.  524 ;  Chicago  v.  Rumpflf,  45  111.  90. 

(3)  St.  Louis  V.  Bank,  49  Mo.  574 ;  St.  Louis  v.  Life  Association,  53 
Mo.  466;  St.  Louis  v.  Sternberg,  69  Mo.  289;  St.  Louis  v.  Laughlin,  49 
Mo.  559;  St.  Louis  v.  Green,  70  Mo.  562;  s.  c,  6  Mo.  App.  591;  Cin- 
cinnati V.  Buckingham,  10  Ohio,  257;  Vandine,  Petitioner,  6  Pick.  187; 
Shelton  v.  Mobile,  30  Ala.  540  ;  Chilvers  v.  People,  1 1  Mich.  43 ;  Brook- 
lyn V.  Cleves,  Hill  &  Den.  L.  S.  231 ;  Desty  Taxation,  770  ;  Distilling 
Co.  r.  Chicago,  112  111.  19. 

(4)  HershofiF  v.  Beverly,  45  N.  J.  288. 

(5)  Appleton  V.  Hopkins,  5  Gray,  530;  Commonwealth  v.  Byrne,  20 
Gratt.  165;  Desty  Tax.  770. 

(6)  St.  Louis  V.  Sternberg,  69  Mo.  302,  and  other  Missouri  cases  there 
cited. 

(7)  Garrett  v.  Messenger,  10  Cox  C.  C.  498;  s.  c,  36  L.  J.  C.  P.  337. 


§  266.1  ORDINANCES    CLASSIFIED,   ETC.  259 

§  265.  EfiPect  of  a  license. — It  follows  from  the  nature 
of  license  exactions  as  mere  police  regulations,  that  the 
payment  of  a  license  fee  in  nowise  exempts  the  licensee 
from  any  of  the  burdens  imposed  by  other  laws  and  ordi- 
nances.^ 

The  grant  of  a  license  does  not  waive  the  right  of 
the  corporation  to  subject  the  business  licensed  to  all  fur- 
ther reasonable  police  regulations.^  But  even  if  the  busi- 
ness, by  the  express  language  of  the  license,  were  etill  to 
be  subject  to  all  ordinances,  no  ordinance  would  be  in- 
cluded which  the  council  has  no  power  to  pass.  Such 
language  is  construed  to  mean  all  laioful  ordinances.'  The 
license  is  a  grant  of  a  privilege,  and  exempts  from  no  duty 
or  burden,  either  of  regulation  or  taxation.*  The  licensee 
by  accepting  the  license  thereby  assents  to  the  terms  im- 
posed by  the  license  and  ordinance,  and  by  the  general 
law.^  Thus  it  would  be  no  bar  to  the  exercise,  as  against 
his  property,  of  the  right  of  eminent  domain.*  IS'or  could 
the  license  be  set  up  iu  defense  of  a  prosecution  under  the 
general  law.^ 

§  266.  Conditions. — Under  power  to  license,  the  council 
may  impose  such  reasonable  conditions  precedent  or  sub- 
sequent as  they  may  see  fit.  Only  in  such  manner  can  the 
license  be  made  efficacious  as  a  mode  of  police  regulation.* 
The  ordinance  may  require  proof  of  fitness  of  the  appli- 
cant, and  may  impose  conditions  for  the  breach  of  which 

(1)  If  the  bond  requires  obedience  "to  all  other  ordinances,"  only- 
such  would  be  included  as  relate  to  the  subject-matter  of  the  thing 
licensed.     In  re  Schneider,  11  Oreg.  288. 

(2)  Maxwell  u.  Jonesboro,  11  Heisk.  257;  Bowling  Green  v.  Carson, 
10  Bush,  64 ;  Baldwin  v.  Smith,  82  IU.  162. 

(3)  Gilham  v.  Wells,  64  Ga.  192. 

(4)  State  V.  Herod,  29  la.  123 ;  Railway  Co.  v.  Louisville,  4  Bush, 
478;  Walker  u.  Springfield,  94  111.  364;  Cole  u.  Hall,  103  111.  30;  East 
St.  Louis  V.  Trustees,  102  111.  489.  Does  not  exempt  from  the  payment 
of  ordinary  taxes.  State  v.  Bennett,  19  Neb.  191 ;  Wendover  v.  Lex- 
ington, 15  B.  Mon.  358. 

(5)  Schwuchow  v.  Chicago,  68  111.  444. 

(6)  Branson  v.  Philadelphia,  47  Pa.  St.  329. 

(7)  Paton  V.  People,  1  Col.  79. 

(8)  Launder  v.  Chicago,  111  111.  291. 


260  MUNICIPAL    POLICE    ORDINANCES.  [§  267. 

the  license   ma}^  be   declared   forfeited.^     Any  reasonable 
conditions  will  be  sustained. 

§  267.  Revocability. — Licenses,  being  mere  grants  of 
privileges  issued  in  the  exercise  of  police  power,  do  not 
create  contractual  obligations,  and  are  revocable  at  the  dis- 
cretion of  the  municipal  authorities.^  The  power  of 
revocation  should,  however,  be  exercised  by  a  formal  act 
of  the  law-making  body,  unless  it  is  made  an  express  con- 
dition in  the  grant  that  the  license  shall  become  forfeited 
by  any  breach.  So,  when  a  person  accepts  a  license,  under 
an  ordinance  which  gives  the  mayor  authority  to  revoke  it 
for  cause,  and  the  license  recites  this  provision,  he  can  not 
be  heard  to  say  that  the  mayor  has  no  power  and  that  the 
license  can  only  be  revoked  by  judicial  sentence.'  Licenses 
may  be  revoked  for  a  violation  of  the  ordinance  under 
which  they  were  granted.*  But  there  should  be  some  cause 
for  revocation.  And  it  has  been  held  that  the  council  can 
not  reconsider  a  grant  of  a  license  at  a  subsequent  meet- 
ing.* The  revocation  of  a  licnse  granted  upon  the  condi- 
tion of  its  due  observance  is  not  a  forfeiture  beyond  the 
power  of  the  corporation.  Such  revocation  is  not  depriv- 
ing the  licensee  of  his  property  without  compensation.* 
It  has  been  held  in  Canada  that  a  forfeiture  for  a  breach 
of  the  ordinance  is  lawful.' 

Revocation  must  be  express  even  when  authorized.  It 
may  not  be  indirectly  effected,  as  by  the  prohibition  of  the 
vocation  licensed,  or  by  the  enactment  of  such  unreason- 

(1)  In  re  Bickerstaflf,  11  Pac.  Rep.  393  (Cal.  June,  1886). 

(2)  Board  of  Excise  v.  Barrie,  34  N.  Y.  657 ;  Commonwealth  v.  Bren- 
nan,  103  Mass.  70;  Commonwealth  v.  Kurby,  5  Gray,  597;  Columbus  v. 
Cutcamp,  61  la.  672. 

(3)  Wiggins  v.  Chicago,  68  111.  373;  Schwuchow  v.  Chicago,  68  111. 
444. 

(4)  Ottumwa  v.  Schaub,  52  la.  515. 

(5)  Laurtz  v.  Hightstown,  17  Vroom,  102,  p.  107.  An  ordinance  pro- 
viding that  the  license  should  be  ipso  facto  revoked  as  a  part  of  the 
penalty  for  breach  of  the  ordinance  under  which  it  was  granted,  held 
void.     Towns  v.  Tallahassee,  11  Flor.  130. 

(6)  Baldwin  v.  Smith,  82  111.  162. 

(7)  Bright  v.  Toronto,  12  U.  C.  C.  P.  433. 


§  268.]  ORDINANCES    CLASSIFIED,   ETC.  261 

able  regulations  as  will  amount  to  a  prohibition.^  Neither 
the  repeal  of  the  ordinance  authorizing  the  license,^  nor  a 
decree  of  a  court  that  the  ordinance  is  void,^  will  render 
the  licensee  liable  to  conviction  until  the  expiration  of  the 
time  foi  which  the  license  was  granted.  Likewise,  a 
license  granted  by  a  de  facto  officer  protects  the  licensee 
until  the  license  is  formally  revoked  and  the  money  paid, 
or  a  proportional  part  thereof  returned.* 

§  268.  Grading  and  discrimination. — Where  power  is 
given  to  a  municipal  corporation  to  license  certain  enumer- 
ated occupations,  the  power  may  be  exercised  as  to  any  or 
all  of  them,  in  the  discretion  of  the  council,  and  it  can  not 
be  objected  that  a  certain  business  is  thereby  discriminated 
against.  The  restriction  might  lawfully  be  placed  upon  a 
single  kind  of  business.^  And  where  several  occupations 
are  licensed,  they. need  not  all  be  treated  alike.  It  is 
within  the  council  discretion  to  say  that  one  occupation 
needs  further  restriction  than  another.  For  this  purpose 
«11  trades  and  occupations  may  be  classified  and  each  class 
required  to  pay  different  amounts.  Ordinances  which  dis- 
tinguish thus  between  classes  are  valid,  so  long  as  they 
treat  all  the  members  of  the  same  class  alike.®  The  dif- 
ficulty naturally  consists  in  determining  the  proper  basis 
of  classification.  It  is  certain  that  the  nature  of  the  oc- 
€upation  may  be  used  as  a  basis.  For  instance,  peddlers, 
auctioneers,  vendors  of  meat,  and  brokers,  exercise  clearly 
distinguishable  callings.  But  there  is  a  strong  tendency  to 
the  classification  of  members  of  the  same  apparent  class, 
based  upon  minor  diflrerences  in  the  locality,  extent,  and 
other  peculiarities.  Where  the  classification  is  distinct  it 
can  never  be  objected  that  the  burden  of  a  uniform  license 

(1)  Wiggins  V  Chicago,  68  111.  373. 

(2)  Boyd  V.  State,  46  Ala.  329. 

(3)  Eegina  v.  Stafford.  22  U.  C.  C.  P.  177. 

(4)  Martel  v.  East  St.  Louis,  94  111.  67. 

(5)  Ex  parte  Hurl,  49  Cal.  557;   Athens  v.  Long,  54  Ga.  330. 

(6)  New  Orleans  v,  Kaufman,  29  La.  Ann.  283;  New  Orleans  v.  Du- 
barry  33  La.  Ann.  481 ;  Davis  v.  Macon,  64  Ga.  128;  Cutliff  r.  Albany,  60 
Ga.  597;  Grand  v.  Guelph,  29  U.  C.  Q.  B.  46;  Kelly  v.  Dwyer.  7  Lea,  180. 


262  MUNICIPAL    POLICE    ORDINANCES.  [§    268. 

fee  falls  heavier  upon  some  licensees  than  upon  others. 
Every  person  in  the  eye  of  the  law  has  equal  facilities  to  do 
business,  and  if  one  is  more  prosperous  than  another  the 
;difference  need  not  be  noticed  by  the  law-making  power. 
Thus,  an  ordinance  exacting  a  fee  for  a  license  to  erect  or 
alter  a  building  within  established  fire  limits  is  not  in- 
equitable because  it  does  not  discriminate  between  classes 
and  sizes  of  buildings  sought  to  be  erected.^ 

But  a  serious  question  arises  so  soon  as  the  corporation 
sees  fit  to  recognize  these  inequalities  among  members  of 
the  same  class  and  to  make  them  the  foundation  for  dis- 
crimination in  the  amount  of  the  fee  demanded.  The  dis- 
crimination must  not  be  arbitrary,  but  must,  in  all  cases, 
be  based  upon  some  reasonable  advantage  possessed  by  one 
class  over  another.^  Thus,  it  has  been  held  that  a  license 
ordinance,  which  demands  $10  from  a  dray  drawn  by  over 
three  horses,  and  $75  from  an  omnibus,  discriminates 
unjustly  against  the  latter.'  It  would  seem  natural  that 
the  opportunities  to  do  harm  and  infringe  upon  the  public 
rights  would  be  directly  proportionate  to  the  amount  of 
business  done,  and  the  ability  or  facility  to  conduct  an  oc- 
cupation ;  and,  in  fact,  the  true  rule  seems  to  be,  although 
not  by  any  means  generally  recognized,  that  the  amount 
of  the  fee  must  be  uniform  as  to  all  having  the  same  or 
equal  facilities  for  profit.*  Under  power  to  license,  dealers 
may  be  classified  according  to  the  nature  and  amount  of 
business  and  the  fee  graded  accordingly.'  So,  under  pow- 
ers to  fix  and  collect  a  license  tax  on  all  trades,  professions, 
and  businesses,  an  ordinance  is  valid  which  grades  the 
amount  according  to  the  gross  sales.  It  is  not  void  for 
lack  of  uniformity.    The  tax  is  on  the  trade  and  not  on  the 

(1)  Welch  u.  Hotchkiss.  39  Conn.  140. 

(2)  Zanoneu.  Mound  City,  II  111.  App.  334. 

(3)  Van  Sant  v.  Stage  Co.,  59  Md.  330 

(4)  East  St.  Louis  v.  Wehrung,  46  111.  392;  Kaliski  v.  Grady,  25  La. 
Ann,  576;  Vosse  v.  Memphis,  9  B.  J   Lee,  294. 

(5)  Vosse  V.  Memphis,  9  B.  J  Lee,  294;  Cincinnati  v.  Bryson,  15  Ohio, 
643.  Grading  license  for  laundries,  according  to  number  of  persons 
employed,  has  been  held  valid.  Ex  parte  Sisto  Li  Protti,  68  Cal.  635' 
Theaters,  according  to  seating  capacity  Marmetv.  State,  Ohio,  1887. 


§   270.]  ORDINANCES   CLASSIFIED,   ETC.  263 

goods  or  person  exercising  the  trade.^  The  amount  of  the 
license  may  he  graded  according  to  the  income.^  Location 
of  the  business  may  be  justly  considered  as  a  facility 
within  the  meaning  of  the  rule  and  the  fees  graded  accord- 
ing to  locality.'  Thus,  a  fee  of  $50  for  persons  selling 
liquor  on  boats  plying  to  and  from  a  city,  and  of  $85  for 
persons  selling  on  land,  is  a  proper  discrimination.  The 
same  amount  is  imposed  on  persons  pursuing  the  traffic  in 
the  same  way.*  But  there  are  authorities  to  the  contrary.' 
An  ordinance  dividing  occupation  into  classes,  and  impos- 
ing a  certain  sum  on  each  class,  and  directing  the  finance 
committee  to  classify  the  occupations  is  not  a  delegation  of 
the  power  to  tax.*  An  ordinance  imposing  a  license  tax 
on  businesses  and  vocations,  and  discriminating  as  to  the 
amounts  to  be  paid  by  different  classes  of  persons,  is  not 
within  the  inhibition  of  the  state  constitution  against  un- 
equal taxation.^ 

There  is  no  law  governing  the  amount  of  the  license  fee 
that  the  city  of  New  Orleans  may  demand  of  any  partic- 
ular occupation.     The  council  is  the  sole  judge.^ 

§  269.  Miscellany. — Until  a  power  to  license  is  exer- 
cised it  lies  dormant,  and  none  can  be  required  until  an 
appropriate  ordinance  is  passed.^  Nor  can  the  license 
power  be  put  in  operation  by  resolution.^" 

§  270.  Business  privileges. — Under  this  and  subse- 
quent sections  are  grouped  together  numerous  decisions 

(1)  Sacramento  v.  Crocker,  16  Cal.  120. 

(2)  Burlington  v.  Insurance  Co.,  31  la.  102. 

(3)  East  St.  Louis  v.  Wehrung,  46  111.  392. 

(4)  Kaliski  v.  Grady,  25  La.  Ann.  576. 

(5)  St.  Louis  V.  Spiegel,  75  Mo.  145;  Donelly  v.  Clarke  Township,  38 
U.  C.  Q.  B.  599. 

(6)  Ould  V.  Richmond,  23  Gratt.  464 ;  Telegraph  Co.  v.  Richmond,  26 
Gratt.  1. 

(7)  State  V.  Columbia,  6  Rich.  1. 

(8)  Goldsmith  v.  New  Orleans,  31  La.  Ann.  646. 

(9)  Bull  V.  Quincy,  9  111.  App.  127. 

(10)  People  V.  Crotty,  93  111,  181. 


264  MUNICIPAL   POLICE   ORDINANCES.  [§  271. 

based  upon  the  construction  of  various  license  powers  and 
ordinances. 

A  statute  authorizing  the  licensing  of  specified  voca- 
tions and  "all  other  places  of  business  conducted  for  profit,'* 
applies  to  merchants,  bankers,  and  brewers,  in  addition  to 
those  enumerated,  or  similar  to  those  enumerated.^  Attor- 
neys at  law  do  not  exercise  an  avocation  or  business  within 
the  meaning  of  a  licensing  power.^  iNTor  are  insurance 
companies  included  by  the  term  "  works  of  all  kinds."  * 
But  if  rightfully  included,  a  foreign  insurance  company 
may  be  compelled  to  pay  a  percentage  on  their  business, 
and  the  same  is  not  a  tax.  The  agent  is  amenable.* 
Unless  specifically  imposed  upon  the  individual  by  the 
power,  it  is  the  business  which  is  licensed,  and  a  partner 
subsequently  taken  in  by  the  licensee  is  protected.^  To  be  a 
live  stock  dealer,  one  must  not  only  buy  live  stock,  but  buy 
with  the  intent  to  sell.®  A  license  imposed  on  persons  or 
corporations  whose  business  extends  beyond  the  limits  of 
the  city  or  even  into  other  states,  such  as  express  com- 
panies, is  not  void  as  being  a  regulation  of  commerce.'' 
Where  the  charter  fixes  a  minimum  and  maximum  limit 
the  fee  exacted  must  neither  fall  below  the  minimum  nor 
exceed  the  maximum.^  When  a  person  is  engaged,  in 
two  occupations,  each  may  be  licensed,  unless  a  clear  cus- 
tom can  be  shown  to  consider  them  as  one  business.^ 

§  271.  Transient  dealers. — The  class  of  dealers  who 
come  into  a  locality  temporarily,  in  order  to  represent  some 
business  located  elsewhere  and  to  solicit  orders  or  sell  oa 

(1)  Butler's  Appeal,  73  Pa.  St.  448. 

(2)  St.  Louis  V.  Laughlin,  49  Mo.  559. 

(3)  State  V.  Smith,  31  la.  493. 

(4)  Trustees  v.Roome,  93  N.  Y.  313;  Ex  parte  Schmidt,  2  Tex.  App.  196. 

(5)  Carter  v.  State,  60  Miss.  456;  Sacramento  v.  Crocker,  16  Cal.  119. 

(6)  Saunders  v.  Russell,  10  Lea,  293. 

(7)  Osborne  v.  Mobile,  16  Wall.  479;  Sacramento  v.  Stage  Co.,  12  Cal, 
135 ;  Harrison  v.  Vicksburg,  3  S.  &  M.  581 ;  Ferry  Co.  v.  East  St.  Louis, 
108  U.  S.  18 ;  Los  Angeles  v.  Railroad  Co.,  61  Cal.  59. 

(8)  Kniper  v.  Louisville,  7  Bush,  599. 

(9)  Savannah  v.  Feeley,  66  Ga.  31 ;  Wilder  v.  Savannah.  70  Ga.  76a 


§  2'r2.]  ORDINANCES    CLASSIFIED,    ETC.  265 

commission,  are,  in  distinction  from  peddlers,  known  as 
transient  dealers.  Ordinances  imposing  a  license  tax  upon 
them  must  be  clearly  aiithorized.^  The  fact  that  they  do 
not  carry  with  them  the  goods  sold  has  been  considered  as 
an  additional  feature  distinguishing  them  from  peddlers. 
Regulations  demanding  license  fees  from  transient  dealers 
are  not  regulations  of  commerce.^ 

A  non-resident  who  sends  goods  to  a  local'  dealer  to  be 
sold  on  commission  is  not  a  transient  dealer.^  Where  the 
sole  power  of  the  kind  is  to  license  peddlers,  an  ordinance 
is  void  which  requires  a  license  from  persons  sent  out  by 
local  business  houses  to  solicit  orders  and  supervise  delivery 
of  the  goods.  Such  are  not  peddlers.*  So,  a  drummer  or 
commercial  traveler,  who  sells  by  sample  for  future  delivery, 
is  neither  a  merchant  nor  a  peddler.^  The  term  merchant 
has,  however,  been  held  to  include  an  itinerant  trader  who 
ships  produce  to  an  agent  who  goes  about  the  city  solicit- 
ing orders  and  delivering  goods  from  the  freight  depot.® 

§  272.  Peddling. — A  peddler  is  one  who  sells  from  place 
to  place,  or  offers  for  sale  commodities,  which  he  carries 
with  him.^  Selling  goods  by  sample  is  not  peddling, 
although  an  occasional  order  is  filled  by  delivering  the 
sample.*  It  makes  no  difference  that  the  peddler  has 
regular  customers.^  The  usual  method  is  to  grant  licenses 
for  a  year  or  fraction  thereof.^'' 

The  term  peddler  includes  milkmen.^^  The  license  im- 
posed is  a  personal  privilege  to  the  one  actually   selling 

(1)  Ex  parte  Taylor,  58  Miss.  478. 

(2)  Colson  V.  State,  7  Blackf.  590;  Sears  v.  Commissioners,  36  Ind. 
267;  In  re  Kudolph,  2  Fed.  Rep.  65. 

(3)  Regina  v.  Cuthbert,  45  TJ.  C.  Q.  B.  19. 

(4)  Regina  v.  Coulter,  5  Ont.  644. 

(5)  City  of  Kansas  v.  Collins,  34  Kan.  434. 

(6)  Burr  v.  Atlanta,  64  Ga.  225. 

(7)  Cook  V.  Pennsylvania,  97  U.  S.  556. 

(8)  Commonwealth  v.  Farnum,  114  Mass.  267;  Commonwealth  v. 
Jones,  7  Bush,  502.      Contra,  Morrill  v.  State,  38  Wis.  428. 

(9)  Chicago  v.  Bartee,  100  111.  61. 

(10)  Wilmington  v.  Roby,  8  Ired.  Law,  250. 

(11)  Chicago  V.  Bartee,  100  111.  57. 


266  MUNICIPAL    POLICE   ORDINANCES.  [§  273. 

the  goods.  He  can  not  even  employ  another  to  drive  his 
wagon  and  transact  business  under  his  license.  The  privi- 
lege can  be  exercised  only  by  the  person  named  in  the 
license.^  Under  power  to  license  peddlers,  a  fee  of  $15 
per  year,  or,  at  the  option  of  the  applicant,  $3  per  day  is 
not  excessive.^  An  ordinance  providing  that  "hawkers 
and  peddlers  of  any  article  kept  for  sale  by  merchants  of 
the  city  to  pay  a  license  of  $2.50  per  day  for  selling  the 
same  is  not  void  for  discrimination,  partiality,  or  on 
grounds  of  public  policy.*  The  fact  that  a  person  is  ped- 
dling an  article  covered  by  a  patent  right,  owned  by  him, 
in  nowise  releases  him  from  the  duty  of  securing  the 
regular  peddler's  license.* 

§  273.  Amusements. — Exhibitions  may  be  regulated  or 
restrained  by  means  of  a  license  system.^  Theatrical  en- 
tertainments are  not  confined  to  pure  drama,  but  include 
negro  minstrelsy.^  A  license  to  keep  a  theater  will,  how- 
ever, not  entitle  the  licensee  to  produce  feats  of  legerde- 
main.^ Amateur  performances,  if  produced  on  successive 
nights,  come  within  the  provision  of  amusement  license 
ordinances.^ 

Owners  of  billiard  halls  may  be  licensed  in  accordance 
with  the  number  of  tables  kept.^  A  license  tax  may  be  im- 
posed upon  billiard  saloons  as  a  reasonable  police  regula- 
tion,'" and  power  to  restrain  and  suppress  them  includes 
power  to  license.'^ 

(1)  Temple  v.  Sumner,  51  Miss.  13;  Gibson  v.  Kaufield,  63  Pa.  St. 
168;  Stokes  v.  Prescott,  4  B.  Mon.  37;  Mabry  v.  Bullock,  7  Dana,  337. 

(2)  People  V.  Russell,  49  Mich.  617, 

(3)  Cherokee  v.  Cox,  34  Kan.  16. 

(4)  People  V.  Russell,  49  Mich.  617. 

(5)  Boston  V.  Schaffer,  9  Pick.  415;  Baker  v.  Cincinnati,  11  O.  S.  534. 

(6)  Taxing  District  v.  Emerson,  4  Lea,  512. 

(7)  Jacko  V.  State,  22  Ala.  73. 

(8)  Society  v.  Diers,  10  Abb.  Pr.  2 16. 

(9)  Merriam  v.  New  Orleans,  14  La.  Ann.  318. 

(10)  Peay  v.  Little  Rock,  32  Ark.  35;  Washington  v.  State,  13  Ark. 
752. 

(11)  Burlington  v.  LaTrrence,  42  la.  681. 


§  275.]  ORDINANCES    CLASSIFIED,   ETC.  267 

§  274.  Dogs. — The  keeping  of  dogs  is  an  act  that  may 
be  regulated  by  requiring  a  license  fee.^  Such  fee  is  not  in 
the  nature  of  a  tax  on  property,  but  is  essentially  a  police 
regulation.^ 

In  the  District  of  Columbia  an  ordinance  requiring  a 
license  for  the  privilege  of  keeping  a  dog,  and  prescribing 
fine  and  imprisonment  for  omission  to  secure  the  same,  is 
void.^ 

§  275.  Liquor  licenses. — The  power  to  regulate  the  sale 
of  intoxicating  liquors  is  one  that  has  always  been  exercised 
by  the  general  government,  and  one  that  may  be  lawfully, 
and  generally  is,  delegated  to  municipal  corporations.  But 
the  grant  must  be  express,  and  the  right  can  not  be  exer- 
cised by  municipalities  under  general  language  of  any 
kind.^ 

An  ordinance  declaring  a  penalty  for  selling  liquors  with- 
out having  first  obtained  a  license  is  valid,  under  power  to 
license  retailers  of  liquor  and  general  police  power.^  Un- 
der power  "to  license  and  regulate  groceries,  ale-houses, 
and  confectioners  "  an  ordinance  regulating  "  grocery  shops 
or  the  vending  by  retail  bread,  cakes,  ale,  wine,  porter, 
beer,"  etc.,  is  valid.^ 

In  Goddard  v.  Jacksonville,  15  111.  589,  it  was  held  that 
towns  being  empowered  to  pass  such  by-laws  as  should  not 

(1)  Cranston  v.  Augusta,  61  Ga.  573;  Shelby  v.  Randies,  57  Ind.  390. 

(2)  Movvery  v.  Salisbury,  82  N.  C.  175;  Van  Horn  v.  People,  46  Mich. 
183;  Carter  v.  Dow,  16  Wis.  317;  Morey  v.  Brown.  42  N.  H.  373. 

(3)  Washington  v.  Meigs,  1  McArthur,  53. 

(4)  Commonwealth  v.  Turner,  1  Cush.  493;  e.  g.  in  Indiana,  Law- 
renceburg  v.  Wuest,  16  Ind.  337;  Commonwealth  v.  Dow,  10  Met.  382; 
Ex  parte  Burnett,  30  Ala.  461.  In  the  entire  absence  of  state  laws  the 
subject  may  be  regulated  under  general  power.  Heisembrittle  v.  City 
2  McMull.  233;  City  v.  Ahrens,  4  Strob.  241;  City  v.  Church,  4  Strob. 
306.  And  in  Illinois  the  sale  of  liquors  is  regulated  under  power  to  pre- 
vent nuisance.  Block  v.  Jacksonville,  36  111.  361;  Pekin  v.  Smelzel,  21 
111.  464;  Byers  v.  Trustees,  16  111.  35;  Goddard  v,  Jacksonville,  15  IlL 
688. 

(5)  Meyer  v.  Bridgetbn,  37  N.  J.  160. 
(■ft)  Thomas  v   Mt.  Vernon,  9  O.  S.  290. 


268  MUNICIPAL   POLICE   ORDns^ANCES.  [§  276 

be  inconsistent  with  the  laws  of  the  state,  and  as  they 
should  deem  necessary  to  prevent  and  remove  nuisances, 
an  ordinance  might  be  passed  declaring  the  selling  of  spir- 
ituous liquors  a  nuisance  and  imposing  a  fine  under  the 
general  power  to  provide  penalties. 

Power  "  to  tax  or  entirely  suppress  all  petty  groceries  '* 
gives  no  right  to  license  the  retailing  of  liquors.^  Nor 
does  power  "to  regulate,  tax,  and  prohibit  tippling-houses, 
ale,  and  porter  shops ''  authorize  a  total  prohibition  of  the 
sale  of  liquors.^ 

Power  to  prohibit  tippling-houses  and  dram  shops  does 
not  authorize  the  passage  of  an  ordinance  forbidding  the 
sale  of  spirits  and  beer,  in  any  quantity  or  for  any  purpose, 
except  by  persons  authorized  to  sell  for  mechanical,  medic- 
inal, and  manufacturing  purposes.^^  Partial  prohibition 
may  be  exercised  under  power  to  prohibit.  The  greater 
includes  the  less.* 

§  276.  Ordinance  provisions. — An  ordinance  closing  the 
bar-rooms  of  inns  during  a  certain  time,  when  "  no  liquor 
is  to  be  sold  or  furnished  to  any  one,"  is  void  for  not  ex- 
cepting guests  of  the  inns  from  its  provisions.^ 

Under  a  charter  provision  that  the  council  might  sup- 
press disorderly  houses,  and  that  t?ie  mayor  might  order 
saloons  closed  at  such  hour  as  the  council  should  designate, 
it  is  held  that  the  council  may  ordain  that  saloons  shall 
close  from  10:30  p.  m.  to  5  a.  m.,  under  a  penalty  of  $25  for 
failure.®  Among  other  provisions  relative  to  the  hours  of 
closing  saloons,  the  following  have  been  sustained :  Com- 
pelling saloons  to  close  at  10  p.  m.  ;'  at  9  p.  m.  under  gen- 

(1)  Leonard  v.  Canton,  35  Miss.  189. 

(2)  Tuck  V.  Waldron,  31  Ark.  462;  Pekin  v.  Smelzel,  21  111,  465. 

(3)  Strauss  v.  Pontiac,  40  111.  301. 

(4)  Gunnarssohn  v.  Sterling,  92  111.  569;  Schwuchow  v.  Chicago,  68 
111.  444;  Harbaugh  v.  Monmouth,  74  111.  371 ;  Martin  v.  People,  88  111. 
390,  and  other  cases  cited  there. 

(5)  Baker  v.  Paris,  10  U.  C.  Q.  B.  621. 

(6)  State  V.  Welch,  36  Conn.  215. 

(7)  Staates  v.  Washington,  44  N.  J.  605;  Bauer  v.  Avondale,  4  Cin. 
Law  Bull.  12;  s.  c,  8  L.  Rec.  478;  Platville  v.  Bell,  43  Wis.  488. 


§  277.]  ORDINANCES    CLASSIFIED,    ETC,  269 

eral  powers ;  ^  at  dark  ;  ^  from  10  p.  m.  to  5  a.  m.  ;  ^  from  10 
p,  M.  to  4  a.  m.*  Such  provisions  need  not  be  based  upon 
power  over  saloons  or  the  liquor  traffic,  but  can  be  sus- 
tained under  general  police  powers  of  regulation.  The 
reasonable  sale  of  liquors  is  in  no  way  hindered.  A  regu- 
lation that  requires  saloons  to  be  closed  twelve  hours  out 
of  the  twenty-four  would  be  unreasonable  under  any 
power.'' 

§  277.  Other  regulations. — Under  power  to  regulate 
ale,  beer,  and  porter-houses  it  is  proper  to  ordain  that  girls 
shall  not  be  employed  in  such  places,  the  regulation  being 
reasonable  as  tending  to  preserve  the  public  morals.^  Un- 
der general  power  to  regulate,  the  council  may,  by. the 
terms  of  the  license,  confine  the  sale  of  liquors  to  a  partic- 
ular room  in  a  house,  as  to  the  front  room  on  the  ground 
floor,  for  instance.''  If  the  power  is  to  license,  regulate, 
restrain,  or  suppress,  the  sale  may  be  prohibited;  and  if 
permitted  under  license,  the  license  may  provide  for  its  for- 
feiture as  a  penalty  for  any  breach  of  the  provisions  of  the 
ordinance  authorizing  the  license.  Other  restrictions  may  be 
imposed,  such  as  requiring  the  place  licensed  to  be  closed 
at  certain  hours,  on  Sundays,  holidays,  and  election  days.^ 
Saloons  may  be  closed  on  Sundays  under  power  to  enact 
police  regulations  and  to  control  the  sale  of  liquors.'  An 
ordinance  inflicting  a  penalty  on  any  one  selling  domestic 
liquors  which  have  not  been  gauged  according  to  fixed 
regulations,  and  charging  a  small  fee  for  such  gauging,  has 
been  held  constitutional.^''  In  Alabama,  under  power  to 
prohibit  drunkenness,  to  license  retailers  of  spirits,  and  to 

(1)  Smith  V.  Knoxville,  3  Head,  245. 

(2)  Maxwell  v.  Jonesboro,  11  Heisk.  257. 

(3)  Ex  parte  Wolf,  14  Neb.  24.  ><!^'<rfiR^''^Sw 

(4)  Staats  v.  Washington,  45  N.  J.  318.     /^^    ^^  r^f      '^ 

(5)  Ward  v.  Greenville,  8  J.  Bax  228.       T  UNIVERSITY 

(6)  Bergman  v.  Cleveland,  39  O.  S.  651.     \x     q       r  . 

(7)  Sanders  V.  Elberton,  50  Ga.  178.  X^^/F0RN«^ 

(8)  Schwuchow  v.  Chicago,  68  111  444. 

(9)  Minden  v.  Silverstein,  36  La.  Ann.  912. 

(10)  Green  v.  Savannah,  R.  M.  Charlt.  368. 


270  MUNICIPAL    POLICE    ORDINANCE.  [§  278."" 

regulate  and  restrain  them  wnenever  deemed  a  nuisance, 
an  ordinance  was  sustained  which  exacted  an  annual  fee  of 
$1,000,  and  inflicted  a  penalty  of  $10  for  each  day  when 
sales  were  made  without  any  license.^  An  ordinance  pro- 
hibiting physicians  from  giving  prescriptions  to  persons  in 
good  health  to  enable  them  to  obtain  liquor  and  thereby 
evade  the  law  is  neither  unreasonable  nor  oppressive.^ 

Power  "  to  prohibit  tippling  houses  "  does  not  authorize 
the  prohibition  of  sales  of  beer  by  brewers.^  An  ordinance 
prohibition  of  the  sale  of  liquors,  without  any  further  defi- 
nition of  the  persons  arrived  at,  will  not  be  construed  to 
apply  to  sales  by  manufacturers,  but  simply  by  retailers.* 

Power  "  to  regulate,  restrain,  and  suppress  shops  and 
places  for  the  sale  of  ardent  spirits  by  retail,"  authorizes  a 
total  prohibition  on  the  theory  that  the  suppression  of  the 
place  where  sold  is  equivalent  to  the  suppression  of  the 
sale  itself.^ 

A  transaction  may  be  a  retail  sale,  even  though  no  con- 
sideration passes.''  Taverns  are  not  necessarily  places  where 
liquor  is  sold,  so  long  as  they  accommodate  and  entertain 
guests.'    A  sale  includes  an  exchange  of  commodities.^ 

§  278.  Definitions. — An  ordinance  that  provides  that "  no 
"person  shall  sell  liquor  without  a  license  applies  to  drug- 
gists."^ So,  power  to  license  retailers  of  spirituous  liquors 
would  authorize  the  extension  of  the  restriction  to  drug- 
gists who  sell  liquors  only  on  prescription.^** 

Considerable  flexibility  is  given  to  the  meaning  of  the 
words  "  wholesale  "  and  "  retail,^'  which  are  necessarily  of 
frequent  use  in  this  class  of  ordinances.     To  illustrate  their 

(1)  Marion  v.  Chandler  6  Ala.  889. 

(2_)  Carthage  v.  Buchner  4  III.  App.  317. 

(3)  Strauss  v.  Pontiac,  40  111  301. 

(4)  St.  Paul  V.  Troyer,  3  Minn.  291. 

(5)  Clintonville  v.  Keeting,  4  Denio,  341. 

(6)  Markle  v.  Akron,  14  Ohio,  586. 

(7)  St.  Louis  V.  Siegrist,  46  Mo.  593. 

(8)  Buffalo  V.  Webster,  10  "Wend,  99. 

(9)  Rochester  v.  Upman,  19  Minn.  108. 

(10)  Sparks  v.  Stokes,  40  N.  J.  487. 


§  279.]  ORDINANCES   CLASSIFIED,    ETC.  271 

respective  limits,  "wholesale  "  has  been  held  to  mean  sell- 
ing liquor  by  the  quart} 

If  the  power  authorizes  the  prohibition  of  minors  except 
on  the  consent  of  a  parent,  the  ordinance  may  require  that, 
consent  to  be  in  writing.^ 

§  279.  Evidence  in  liquor  cases. — In  actions  to  recover 
the  penalty  imposed  by  ordinances  upon  engaging  in  the 
liquor  traffic  without  first  obtaining  a  license,  it  is  not  in- 
cumbent upon  the  prosecution  to  prove  the  failure  to  secure 
a  license.  The  defendant  must  prove  compliance  with  the 
law,  because  the  fact  lies  peculiarly  within  his  knowledge.^ 
IKTo  proof  negativing  the  having  a  license  is  necessary.*  In 
a  suit  for  violating  such  an  ordinance,  the  defendant  testi- 
fied that  he  could  not  afford  to  pay  for  a  license  and  plead 
guilty  to  violating  the  ordinance.  The  ordinance  contained 
other  prohibitory  provisions.  It  was  held  that  these  facts 
proved  that  he  had  no  license,  that  he  sold  liquors,  and 
that  his  plea  of  guilty  had  reference  to  the  failure  to  pro- 
cure a  license.^ 

The  proof  used  only  sustains  the  essential  elements  of 
the  violation.  Under  an  ordinance  prohibiting  the  sale 
of  beer  within  the  corporate  limits  it  is  not  necessary  to 
prove  that  the  beer  sold  was  intoxicating.  The  offense 
consists  in  selling  beer  to  any  character.^  So,  where  the 
ordinance  forbids  the  keeping  open  of  licensed  saloons  on 
Sunday,  it  becomes  necessary  to  convict  to  prove  that  the 
saloon  in  question  is  a  licensed  one.^ 

In  a  prosecution  for  selling  intoxicating  liquors  to  a 
minor,  it  is  sufficient  to  show  that  the  liquor  sold  was  in- 
toxicating, without  showing  that  the  vendor  knew  it  to  be 

(1)  Roberson  v.  Lambertville,  38  N.  J.  69. 

(2)  Arkell  v.  St.  Thomas,  38  U.  C.  Q.  B.  594. 

(3)  Information  V.  Oliver,  21  S.  C,  318;  State  u.  Geuing,  1  McCord, 
574. 

(4)  Smith  V.  Adrian,  1  Mich.  495.  Contra,  Bull  v.  Quincy,  9  111.  App. 
127. 

(5)  Pendergastv.  Peru,  20  111.  51. 

(6)  Kettering  v.  Jacksonville,  50  111.  39. 

(7)  Bloomington  v.  Strehle,  47  111.  72. 


272  MUNICIPAL    POLICE    ORDINANCES.  [§  280. 

SO.  Knowledge  or  intent  is  immaterial  to  the  offense.^  So 
it  is  not  necessary  to  prove  that  the  liquor  was  actually 
sold.  The  burden  of  the  offense  consists  in  allowing  the 
person  to  procure  the  liquor,  and  it  matters  not  whether  it 
was  sold' or  given  away.'  Under  an  ordinance"against  sell- 
ing liquors  in  less  quantities  than  a  quart,  the  sale  of  a 
single  glass  is  enough  to  constitute  the  off'ense.^ 

It  is  also  unnecessary  to  prove  that  the  sale  was  made  by 
the  defendant  in  person.  The  owner  of  a  saloon  is  respon- 
sible for  the  unlawful  act  of  his  agents  and  employes,  even 
though  he  may  have  given  his  agent  express  instructions 
not  to  make  such  sales  as  the  one  complained  of.*  The  act 
of  one  partner,  too,  can  be  proven  to  convict  the  other.' 

§  280.  Uniformity  in  licenses. — Ordinances  have  fre- 
quently been  attacked,  but  invariably  without  success,  on 
the  ground  that  the  amount  of  the  license  fee  demanded  is 
greater  than  that  imposed  by  similar  ordinances  in  other 
towns,  more  or  less  universally  in  the  same  state.  But  in 
this  respect  license  fees  do  not  differ  from  other  charges 
authorized  to  be  imposed  by  ordinances.  They  are,  as  we 
have  seen,  in  no  sense  taxes,  but  merely  incidents  of  effect- 
ive police  regulation,  and  the  constitutional  requirement  of 
uniformity  of  taxation  has  no  sort  of  application.  The 
amount  is  to  be  defined  by  the  council  of  each  municipality, 
within  certain  express  statutory  limits  as  to  the  maximum, 
or  within  the  limits  of  reasonableness,  when  not  expressly 
limited,  and  that  a  higher  or  lower  rate  should,  in  the 
opinion  of  the  council,  be  necessary  or  advisable  in  one 
community  than  in  another  is  natural,  and  no  objection  to 
the  validity  of  the  ordinance.® 

(1)  Byars  v.  Mount  V^ernon,  77  111.  467;  St.  Louis  v.  Sternberg,  69 
Mo.  303. 

(2)  Council  V.  Van  Roven,  2  McCord,  465. 

(3)  Kansas  City  v.  Muhlbach,  68  Mo.  638. 

(4)  Council  V.  Van  Roven,  supra. 

(5)  Smith  V.  Adrian,  1  Mich.  495. 

(6)  Louisiana  v.  Lathrop,  10  La.  Ann.  398;  Morrill  v.  State,  38  Wis. 
428;  Fire  Dept.  v.  Helfenstein,  16  Wis.  136;  Baker  v.  Cincinnati,  11  O. 
S.  634;  People  v.  Moore,  1  Idaho  (N.  S.)  504;  Leavenworth  v.  Booth, 


§  282.]  ORDINANCES   CLASSIFIED,    ETC.  273 

§  281.  Taxation. — Inasmuch  as  the  aim  of  this  volume 
is  to  deal  specially  with  police  regulations  proper,  it  will 
be  inconvenient  to  consider  at  any  length  subjects  con- 
nected with  property  rights  of  corporations.  Municipal 
taxation  has  received  thorough  treatment  by  several 
authors,^  and  except  as  municipal'  taxes  have  an  indirect 
connection  with  police  regulations,  it  answers  every  purpose 
to  state  general  rules  alone.  One  of  the  most  important 
topics  connected  with  local  taxation  is  that  of  assessments 
for  local  improvements.  In  this  connection,  the  summary 
given  by  Judge  Dillon  in  his  treatise  on  municipal  corpo- 
rations expresses  the  law  in  an  admirable  manner. 

§  282.  Local  assessments. — He  says : 

"  1.  A  local  assessment  upon  property  immediately  and 
specially  benefited  by  a  local  improvement  of  a  street, 
although  resting  for  its  taxation  upon  the  taxing  power,  is 
distinguishable  in  many  respects  from  a  tax  levied  for  the 
general  purposes  of  the  state  or  the  general  purposes  of  the 
municipality.  The  soundness  of  this  proposition  is  recog- 
nized by  the  legislation  of  perhaps  every  state  in  the 
Union.  Hence,  a  statutable  exemption  of  designated  prop- 
erty from  '  taxation '  does  not  include  an  exemption  from 
local  assessments.  Hence,  also,  provisions  in  state  consti- 
tutions concerning  equality  of  'taxation'  are  generally, 
though  not  invariably,  held  not  to  apply  by  their  intrinsic 
force  to  local  assessments. 

"  2.  A  local  assessment  or  tax  upon  the  property  bene- 
fited by  a  local  improvement  may  be  authorized  by  the 
legislature. 

"  3.  Special  benefits  to  the  property  assessed — that  is, 
benefits  received  by  it  in  addition  to  those  received  by  the 
community  at  large — is  the  true  and  only  solid  foundation 
upon  which  local  assessments  can  rest ;  and,  to  the  extent 
of  special  benefits,  it  is  every- where  admitted  that   the 

15  Kan.  527 ;  Washington  v.  State,  13  Ark.  752 ;  Livingston  v.  Trustees, 
99  111.  564;  Slaughter  v.  Commonwealth,  1.3  Gratt.  767. 

(1)  Dill.  Mun.  Corp.,  §§  735  to  §822;  Desty  on  Taxation;  Cooley  on 
Taxation. 

18 


274  MUNICIPAL    POLICE    ORDINANCES.  [§  283. 

legislature  may  authorize  local  taxes  or  assessments  to  be 
made. 

"  5.  The  assessments  may  be  made  upon  all  the  property 
specially  benefited  by  the  particular  improvement  according 
to  the  exceptional  benefit  each  lot  or  parcel  of  property 
actually  and  separately  receives.  This  is  the  method  .  .  . 
which,  in  our  judgment,  is  right  in  principle  and  the  most 
just  in  its  practical  workings. 

"  6.  When  the  property  is  urban,  and  has  been  platted 
into  blocks,  with  lots  of  equal  depth  which  abut  the  local 
improvement  for  which  the  assessment  is  made,  and  there 
are  no  special  constitutional  restrictions  in  the  way,  and 
nothing  in  the  nature  and  circumstances  of  the  particular 
case  to  make  assessments  in  proportion  to  the  frontage  of 
the  lots  upon  the  improvement  work  manifest  injustice,  it 
is  generally,  but  not  always,  regarded  as  within  the  compe- 
tency of  the  legislature  to  provide  that  it  may  be  so 
made. 

"  7.  Under  the  same  conditions  and  restrictions,  the  leg- 
islature may  authorize  the  assessment  upon  the  lots  bene- 
fited, in  proportion  to  their  superficial  area.'' 

This  power  of  levying  taxes  to  meet  the  cost  of  local 
improvements  is  necessarily  delegated  to  municipal  corpo- 
rations, and  when  the  grant  does  not  specify  the  mode  of 
distributing  the  burden,  the  rules  just  stated  must  be  fol- 
lowed. When,  however,  the  grant  indicates  the  mode, 
then  the  assessment  must  be  made  in  strict  conformity 
thereto. 

§  283.  Other  taxes. — Local  assessments  are  necessary 
from  the  nature  of  things  and  are  generally  directed  with 
so  much  certainty  that  only  questions  of  construction  of 
special  language  arise.  But  in  many  states  the  legislative 
policy  permits  a  delegation  to  municipal  corporations  of 
the  power  of  general  or  limited  taxation  for  the  purpose  of 
swelling  the  general  revenue  fund  of  the  corporation. 
Under  such  delegation  many  important  questions  arise  in 
the  construction  of  the  power  and  in  the  extent  of  its 
application. 


§  284.]  ORDINANCES    CLASSIFIED,    ETC.  275 

The  power  to  tax  for  revenue  need  not  be  granted  in 
specific  terms,  but  it  must,  nevertheless,  be  plainly  and 
unmistakably  conferred.  It  can  never  be  deduced  by 
implication  or  inference.  The  only  apparent  exception  is 
where  its  exercise  is  absolutely  essential  to  the  complete 
exercise  of  some  express  power.^  It  can  not  be  inferred 
frem  the  general  welfare  clause,  because  taxation  is  an 
attribute  of  sovereignty,  only  to  be  exercised  by  express 
delegation.^  Nor  can  the  power  to  tax  for  one  purpose  be 
implied  from  power  to  tax  for  other  specified  purposes.' 
And  when  permitted,  taxes  can  only  be  levied  for  corporate 
purposes.*  Under  power  "  to  license  and  regulate,"  taxes 
for  revenue  can  not  be  imposed.^ 

§  284.  Mode  of  exercises. — Power  to  impose  a  tax  upon 
sales  may  be  exercised  by  a  direct  tax,  or  by  requiring  a 
license  to  sell.*  So,  it  is  held  in  Louisiana,  that  ordinances 
making  certain  things  unlawful  without  a  license,  and 
prescribing  a  penalty,  are  measures  for  revenue  and  can 
not  be  enforced  under  the  power  to  punish  transgressions 
of  police  regulations.^ 

A  penalty  imposed  for  selling  liquors  without  a  license 
is  not  a  tax.^     Under  power  to  tax  business  an  assessment 

(1)  State  V.  Smith,  31  la.  493.  Must  be  plainly  conferred.  In  re 
Church,  66  N.  Y.  395;  Sewall  v.  St.  Paul,  20  Minn.  511;  Vance  v. 
Little  Rock,  30  Ark.  439;  Heine  v.  Commissioners,  19  Wall.  660;  Dill. 
Mun.  Corp.,  §  763. 

(2)  Mays  v.  Cincinnati,  1  0.  S.  268. 

(3)  Asheville  v.  Means,  7  Ire.  Law,  406;  Dill.  Mun.  Corp.,  §  765. 

(4)  Foster  v.  Kenosha,  12  Wis.  616. 

(5)  Van  Sant  v.  Stage  Co.,  59  Md.  330;  St.  Louis  v.  Trust  Co.,  47  Mo. 
150;  Clark  v.  New  Brunswick,  43  N.  J.  175;  State  v.  Bean,  91  N.  C. 
554;  Miihlenbrinck  v.  Commissioners,  42  N.  J.  364.  Contra,  Hodges  v. 
Nashville,  2  Humph.  61 ;  Ex  parte  Frank,  52  Cal.  606.  Under  power 
"  to  regulate  and  prohibit  and  to  fix  the  amount."  Flanagan  v.  Plain- 
field,  44  N.  J.  118.  But  not  under  power  "to  prevent,"  Fen n ell  v. 
Guelph.  24  U.  C.  Q.  B.  238. 

(6)  Carroll  v.  Tuscaloosa,  12  Ala.  173  ;  Wright  v.  Atlanta,  54  Ga.  646. 

(7)  State  V.  Patamia,  34  La.  Ann.  750;  Municipality  v.  Pance,  6  La. 
Ann.  515 

(8)  King  V.  Jacksonville.  3  111.  305. 


276  MUNICIPAL    POLICE    ORDINANCES.  [§  287» 

of  one-tenth  per  cent  on  gross  sales  is  invalid,  it  being  the 
occupation  and  not  the  receipts  therefrom  that  may  be 
taxed.^ 

§  285.  Amount. — A  charge  will  be  construed  a  tax 
which  exceeds  plainly  the  reasonable  limits  laid  down  in 
the  foregoing  chapter.-^ 

Failure  to  pay  taxes  m  the  nature  of  regulations 
is  as  much  a  violation  of  an  ordinance  as  any  other,  and  is 
equally  punishable.' 

§  286.  Constitutional  restrictions. — Although  taxes  for 
revenue  are  taxes  in  name  and  nature,  they  are  excluded 
by  implication  from  the  operation  of  constitutional  prohi- 
bitions against  inequality  of  taxation,  and  directions  as  to 
the  mode  of  levying.  So,  when  the  constitution  demands 
that  all  taxes  shall  be  levied  ad  valorem^  taxes  imposed  by 
municipal  corporations  for  purposes  of  regulation  as  well 
as  revenue  are  exempted.*  But  powers  of  this  kind  should 
never  be  exercised  so  as  to  virtually  effect  a  total  prohibi- 
tion of  the  occupation  taxed.* 

§  287.  Discrimination. — The  same  general  rules  that 
apply  to  the  graduation  and  classification  of  the  objects  of 
a  license  system  are  applicable  to  taxation.  "  Certain 
occupations  may  be  taxed  for  a  greater  amount  and  others 
for  less,  and  to  that  end  the  city  may  divide  occupations 
and  callings  into  several  classes  and  impose  a  different  tax 
on  each  class,  but  upon  all  objects  of  taxation  in  the  same 
class  there  must  be  equality." '    No  regard  need  be  paid  to 

(1)  Columbus  V.  Flournoy,  65  Ga.  231 ;  Hatcher  v.  Columbus,  69  Ga.^ 
581 ;  Insurance  Co.  v.  Augusta,  50  Ga.  530;  Alton  v.  Insurance  Co.,  82 
111.  45. 

(2)  Mayor  v.  Railroad  Co.,  32  N.  Y.  261;  Collins  v.  Louisville,  2  B. 
Mon.  134. 

(3)  St.  Louis  V.  Green,  70  Mo.  5fi2. 

(4)  St.  Louis  r.  Green,  70  Mo.  562;  Glasgow  v.  Rowse,  43  Mo.  490. 

(5)  Sweet  v.  Wabash,  41  Ind.  7. 

(6)  New  Orleans  v.  Dubarry,  33  La,  Ann.  481.  To  the  same  efiFect 
are  :  Athens  v.  Long,  54  Ga.  330;    Cutliflf  v.  Albana,  60  Ga.  597;   New 


§  287.]  ORDINANCES   CLASSIFIED,    ETC.  277 

the  amount  of  income ;  it  is  the  business  and  not  the  ex- 
tent that  is  taxed.^  ]N"or  need  each  class  be  taxed.  The 
fact  that  the  tax  actually  imposed  virtually  exempts  all  of 
one  or  more  classes  does  not  invalidate  the  ordinance.^ 

The  classification  must  rest  upon  some  plain  and  reason- 
able distinction.  Such  is  held  to  be  the  amount  of  the 
income,  when  power  is  conferred  to  tax  incomes  as  such. 
Therein  lies  the  chief  difference  between  general,  state, 
and  municipal  taxation. 

An  ordinance  is  valid,  although  it  exempts  from  dealers 
in  meat  those  farmers  who  sell  their  own  produce.  In 
such  case  butchers  residing  outside,  but  delivering  within 
the  city,  do  not  come  within  the  exemption.'  Residence 
is  not  essential.  Thus,  a  tax  levied  on  all  vehicles  using 
the  streets  of  a  city  is  equally  applicable  to  vehicles  owned 
by  non-residents.*  Discrimination  may  be  made  between 
domestic  and  foreign  insurance  companies.*  An  ordinance 
taxing  the  sale  of  goods  need  not  distinguish  between 
goods  of  domestic  and  foreign  manufacture,  and  is  not, 
therefore,  a  regulation  of  commerce.®  Chartered  banks 
may  be  taxed  as  a  business  to  the  same  extent  as  private 
banks.^  Under  power  to  tax  all  peddlers  bringing  com- 
modities into  the  city,  a  tax  may  be  imposed  on  all 
strangers  and  non-residents.  The  amount  was  $10  per 
capita.  The  court  held  that  this  was  not  unjust  discrim- 
ination, because  discrimination  in  taxation  is  only  an  ob- 

Orleans  v.  Kaufman,  29  La.  Ann.  283 ;  Express  Co.  v.  St.  Joseph,  66 
Mo.  675;  St.  Louis  t?.  Transportation  Co.,  84  Mo.  156;  Nashville  v. 
Althrop,  5  Coldw.  554. 

(1)  St.  Louis  V  Sternberg,  69  Mo.  289. 

(2)  Bright  v.  McCullough,  27  Ind.  223;  Insurance  Co.  v.  Augusta,  50 
•Ga.  530;  Burch  v.  Savannah,  42  Ga.  596;  Holberg  v.  Macon,  55  Miss. 
112;  Glasgow  v.  Rowse,  43  Mo.  479;  New  Orleans  v.  Bank,  10  La. 
Ann.  735. 

(3)  Davis  V.  Macon,  64  Ga.  128 ;  Burr  v.  Atlanta,  64  Ga.  225. 

(4)  St.  Louis  V.  Green,  70  Mo.  562;  s.  c,  7  Mo.  App.  468  ;  Chess  v. 
Birmingham,  1  Grant  Cas.  438;  Bennett  v.  Birmingham,  31  Pa.  St.  16; 
Gartside  v.  East  St.  Louis,  43  111.  47. 

(5)  State  V.  Lathrop,  10  La.  Ann.  398.  i 

(6)  Ex  parte  Hanson,  28  Fed.  Rep.  127. 

(7)  Macon  V.  Bank,  60  Ga.  133.  •  ■ 


278  MUNICIPAL    POLICE    ORDINANCES.  [§    288. 

jection  when  plainly  oppressive,  whereas  the  amount 
imposed  was  a  reasonable  protection  to  local  merchants.^ 
Where  a  classification  has  been  made  the  same  individual 
may  be  obliged  to  pay  two  taxes  when  he  is  engaged, 
although  in  the  same  localit}^,  in  the  sale  of  two  classes  of 
goods.^  Under  authority  to  tax  all  persons  engaged  in  a 
certain  business,  each  member  of  a  firm  may  be  made 
amenable  to  a  tax.'  Bat  when  the  power  is  to  tax  the 
business,  the  tax  is  levied  on  the  partnership  as  a  unit.* 

It  is  apparent  that  very  little  distinction  exists  between 
taxes  and  license  fees  as  regards  the  standard  of  their 
validity.  Every  thing  that  exceeds  the  limit  of  reasonabil- 
ity  is  a  tax,  and,  when  taxation  is  not  permitted,  is  illegal  • 
but,  if  taxation  is  allowed,  the  taxes  imposed  are  not 
looked  upon  as  falling  within  the  constitutional  and  stat- 
utory meaning  of  the  word,  but  merely  as  a  more  pro- 
nounced mode  of  regulation,  inuring  to  the  benefit  of  the 
corporate  revenues. 

§  288.  Sunday  ordinances. — It  is  the  policy  of  every 
state  in  the  Union  to  enforce  a  proper  observance  of  the 
first  day  of  the  week  as  a  day  of  rest  and  quiet,  and  al- 
though no  express  power  is  granted  to  a  municipality  to 
further  that  policy  by  ordinances  directed  at  the  observ- 
ance of  Sunday,  such  ordinances  may  be  passed  under 
implied  police  powers.  Under  power  to  regulate  any  sub- 
ject of  municipal  control,  special  regulations  applicable  to 
Sunday  alone  may  be  passed.  Additional  regulation  is 
necessary  on  that  day  in  order  to  preserve  the  comfort  of 
the  inhabitants.  It  is  universally  held,  therefore,  that 
trades,  occupations,  and  businesses,  which  are  not  works 
of  necessity,  may  be  restrained  or  totally  prohibited  on 
Sunday.  This  may  be  done  under  a  general  welfare  clause 
in  the  statute  or  charter,'  or  under  any  grant  of  general 

(1)  Three  Rivers  v.  Major,  8  Quebec,  181. 

(2)  Keeley  v.  Atlanta,  69  Ga.  583. 

(3)  Wilder  v.  Savannah,  70  Ga.  760;  Lanier  v.  Mayor,  59  Ga.  187. 

(4)  Savannah  v.  Hines,  53  Ga.  616. 

(5)  State  V.  Welsh,  36  Conn.  215;    Megowan  v.  Commonwealth,  2 
Mete.  (Ky.)  3. 


§   2:>8.]  ORDINANCES    CLASSIFIED,    ETC.  279 

police  power.^  So,  when  power  is  granted  to  regulate  the 
]iolice  of  a  city,  to  pass  and  enforce  all  necessary  police 
regulations,  and  to  impose  penalties  for  violations  of  the 
ordinances,  places  of  business  may  be  required  to  be  closed 
on  Sunday."  Especially  is  this  true  of  such  businesses  as 
from  their  nature  are  gen6rally  looked  upon  as  liable  to 
interfere  with  the  public  security  and  to  promote  disorders. 
The  sale  of  intoxicants  and  noisy  and  public  occupation 
may  be  prohibited  on  Sunday.  This  will  not  be  so  far  ex- 
tended as  to  cause  great  financial  loss  or  great  loss  of  time 
in  businesses  which  depend  largely  on  uninterrupted  prose- 
cution for  success.  It  is,  for  example,  improper  to  close 
large  mills  and  manufacturing  establishments. 

Even  if  the  state  law  only  goes  to  the  extent  of  forbid- 
ding all  labor  on  Sunday,  which  disturbs  "the  peace  and 
good  order  "  of  the  community,  places  of  ordinary  commer- 
cial business  may  be  closed  on  that  day." 

Ordinary  regulations  against  carrying  on  mercantile  pur- 
suits on  Sunday  are  not  in  derogation  of  the  rights  of  re- 
ligious liberty.*  But  an  ordinance  would  be  void  which 
orders  the  closing  of  all  places  of  business  on  Sunday, 
without  making  some  provision  for  works  of  charity  and 
necessity  and  for  the  transaction  of  business  by  those  who 
from  religious  motives  observe  some  other  day  as  a  day  of 
rest.^  The  offense  in  such  cases  depends  on  the  publicity 
of  the  business,  on  its  conduct  as  a. public  business,  to  which 
every  one  who  wishes  may  have  access.  Thus,  it  is  not  at 
all  impossible  or  inconsistent  to  have  a  business  place 
closed  for  one  purpose  and  open  for  another.^     Hotels  and 

(1)  Specht  V.  Commonwealth,  8  Pa.  St.  312;  St.  Louis  v.  Caflferata, 
24  Mo.  94;  Hudson  v.  Geary,  4  E.  I.  485;  Cincinnati  v.  Rice,  15  Ohio, 
225;  State  v.  Ames,  20  Mo.  214;  Karwisch  v.  Atlanta,  44  Ga.  204; 
Gabel  v  Houston,  29  Tex.  336. 

(2)  McPherson  v.  Chebanse,  114  HI.  46. 

(3)  McPherson  v.  Chebanse,  114  111.  46. 

(4)  Charleston  v.  Benjamin,  2  Strobh.  508. 

(5)  Canton  v.  Nist,  9  0.  S.  439.  Contra,  Shreveport  v.  Levy,  26  La. 
Ann.  671.  Ordinances  can  not  distinguish  between  Jews  and  Gen 
tiles. 

(6)  Lynch  v.  People,  16  Mich.  477. 


280  MUNICIPAL  POLICE  ohdinances.  [§  290 

inns  are  such  places  of  business.  Though  the  general  pub- 
lic is  prohibited  from  access  to  a  hotel  bar  on  Sunday,  the 
hotel-keeper  owes  other  duties  to  his  guests,  and  he  can 
not  be  punished  for  furnishing  liquors  to  them.  If  the  or- 
dinance disregards  their  duty,  and  attempts  to  absolutely 
prohibit  the  sale  of  liquors  on  Sunday,  it  is  voidable.' 
Travelers  and  boarders  must  be  excepted.^ 

The  municipality  ought  as  a  lule  to  follow  the  policy  es- 
tablished by  the  state,  and  ought  never  to  attempt  to  ex- 
ceed its  limits. 

§  289.  Appropriations  for  police  purposes.— Munici- 
palities are  generally  provided  by  the  laws  of  the  state 
with  a  system  of  municipal  courts  and  officers.  It  becomes 
a  question  of  some  importance  as  to  how  far  the  munici- 
pality may  make  appropriations  to  supplement  the  efficacy 
of  the  state  laws.  In  the  first  place,  suitable  buildings  or 
rooms  must  be  provided  for  the  use  of  the  local  officers  and 
courts,  and  the  incidental  expenses  of  their  operation  and 
action  must  be  defrayed.  These  are  legitimate  corporate 
purposes,  and  may  be  attended  to  without  an  express  grant 
of  power.  A  suitable  municipal  hall  may  be  erected 
without  express  power.^  And  it  may  be  built  large  enough 
to  meet  and  supply  the  prospective  as  well  as  the  present 
wants  of  the  administration  of  the  local  government;  and, 
until  needed,  the  extra  rooms  may  be  rented  to  private  per- 
sons, or  their  use  permitted  gratuitously.* 

§  290.  To  aid  the  administration  of  justice. — Occa- 
sions frequently  arise  when  it  seems  eminently  proper  that 
the  municipality  should,  by  means  of  judicious  appropria- 
tions, render  additional  aid  and  encouragement  to  the  local 
authorities  in  'the  administration  of  the  laws.  But  it  is 
generally  considered  unlawful  to  offer  special  inducements 

(1)  Wood  V.  Brooklyn,  14  Barb.  425. 

(2)  Ross  V.  York,  14  U.  C.  C.  P.  171. 

(3)  Torrent  u.  Muskegon,  47  Mich.  115. 

(4)  Worden  v.  New  Bedford,  131  Mass.  23;  French  v.  Quijicy,  3  AV 
len,  9. 


§  291.]  ORDINANCES    CLASSIFIED,  ETC.  281 

to  the  local  officers  to  do  their  duty.  It  is  the  duty  of  ev- 
ery citizen  to  aid  in  making  arrests  when  an  opportunity 
offers  itself;  but  private  persons  will  undoubtedly  be  moved 
to  greater  activity  to  assist  the  local  police  if  they  have  a 
prospect  of  reward  for  so  doing,  and  it  has  been  held  law- 
ful to  offer  rewards  to  citizens  for  the  apprehension  of  crim- 
inals.^ It  is  the  duty  of  a  police  officer  to  do  all  he  can  to 
make  lawful  arrests,  and  in  theory  he  needs  no  additional 
stimulus  to  urge  him  to  properly  perform  that  duty.  The 
extra  exertion  made  by  a  private  citizen  may  constitute  a 
consideration  for  the  payment  of  a  reward  offered ;  but  an 
officer  who  makes  an  arrest  has  done  no  more  than  his 
duty  for  which  his  salary  is  paid  to  him,  and  there  is  no 
consideration  for  such  a  payment  or  off'er.  It  is  accord- 
ingly generally  held,  and  usually  without  drawing  any  dis- 
tinction between  officers  and  private  persons,  that  it  is  un- 
lawful for  a  municipal  corporation  to  offer  rewards  for  ar- 
rests.^ The  police  power  of  the  municipality  is  limited  in 
this  respect  to  allowing  extra  pay  to  officers  who  are 
obliged  to  do  extra  duty  in  time  of  great  peril  from  riots, 
and  to  providing  adequate  means  of  defense  against  riots. 
Thus,  it  would  be  lawful  to  authorize  the  mayor,  in  antici- 
pation of  a  riot,  to  borrow  arms  and  to  give  a  bond  for 
their  safe  return.^  As  against  dangers  threatened  from 
without  the  municipality,  such  as  hostile  invasions,  or  an  at- 
tack of  rebels,  it  is  the  duty  of  the  state  and  nation  to  pro- 
vide protection,  and  the  municipality  has  no  power  by  im- 
plication to  expend  public  money  for  defense.* 

§  291.  To  employ  attorneys. — As  a  rule,  a  municipal 
corporation  may,  without  express  authority,  employ  attor- 

(1;  York  v.  Forscht,  23  Pa.  St.  391;  Crashaw  o.  Roxbury,  7  Gray, 
374. 

(2)  Cornwall  v.  West  Missouri,  25  U.  C.  C.  P.  9;  Hawk  v.  Marion 
County,  48  la.  472;  Pool  v.  Boston,  5  Cush.  219;  Gilmore  v.  Lewis,  12 
Ohio,  281;  Gale  v.  South  Berwick,  51  Me.  174;  Patton  v.  Stephens,  14 
Bush,  324;  Hanger  v.  Des  Moines,  52  la.  193. 

(3)  New  York  v.  Buffalo,  2  Hill,  434. 

(4)  Burrill  v  Boston,  2  Cliff.  590 ;  Crowell  v.  Hopkinton,  45  N.  J.  9; 
Stetson  V.  Kempton,  13  Mass.  272. 


282  MUNICIPAL    POLICE   ORDINANCES.  [§  292. 

neys  to  look  after  the  public  interests  and  to  aid  in  the  ex- 
ecution of  its  laws.^  A  different  question  arises  when  suit 
is  brought  against  some  municipal  officer  for  alleged  inju- 
ries suffered  at  his  hands  in  the  performance  of  his  official 
duties.  The  law  presumes  that  every  officer  restricts  his 
official  acts  to  those  which  are  lawful,  and  when  the  legal- 
ity of  his  acts  are  questioned  he  must  either  defend  him- 
self or  be  defended  by  the  public  whom  he  serves.  An  at- 
torney employed  by  a  city  to  defend  an  action  brought 
against  a  municipal  officer  for  an  alleged  unlawful  exer- 
cise of  his  powers  can  collect  reasonable  fees  from  the  cor- 
poration. As  was  justly  said  by  Zollars,  J.,  in  Cullen  v. 
Carthage,  103  Ind.  196  ;  s.  c,  53  Am.  Rep.  504 :  "  In  every 
community  there  is  a  greater  or  less  number  of  people  who 
yield  obedience  to  the  law,  and  respect  the  rights  of  others, 
simply  because  they  fear  the  eonsequences  of  an  opposite 
course.  It  is  necessary  that  such  shall  be  made  to  under- 
stand that  the  laws  will  be  executed,  and  that  the  execu- 
tive officers  will  be  sustained  in  their  efforts  to  execute 
them.  If  it  should  be  understood  that  the  marshal  of  the 
town  is  left  without  support  of  the  governing  body  to  de- 
fend himself  against  all  manner  of  suits  that  might  be  in- 
stituted against  him,  the  vicious  and  violent  might,  by  a 
succession  of  annoying  suits  against  him,  greatly  cripple 
the  enforcement  of  the  ordinances.  Such  an  understand- 
ing would  at  least  have  a  tendency  to  embolden  the  vicious 
and  intimidate  the  marshal." 

§  292.  Wharves. — In  those  municipalities  which  border 
on  navigable  waters,  it  is  often  important  to  determine  the 
extent  of  their  power  to  regulate  the  public  wharves. 
The  full  power  of  police  control  extends  only  over  those 
wharves  that  have  been  dedicated  to  or  constructed  by  the 
corporation.  Only  such  control  can  be  exercised  over  pri- 
vate wharves  as  may  be  necessary  by  reason  of  the  public 
nature  of  their  use.''    Public  wharves  can  not  be  erected 

(1)  Memphis  v.  Adams,  9  Heisk.  518;  Smith  v.  Sacramento,  13  Cal. 
531, 

(2)  Horn  v.  People,  26  Mich.  222.     See  last  note  under  g  144,  ante. 


§  292.]  ORDINANCES    CLASSIFIED,  ETC.  283 

except  under  special  powers;  but  if  their  erection  is  in  any 
way  authorized,  such  powers  of  police  control  and  regula- 
tion may  be  exercised  over  them  as  are  necessary  to  pre- 
serve their  usefulness.  Neither  power  to  regulate  the 
streets  nor  to  preserve  good  order  and  government  author- 
rize  the  imposition  of  wharfage  fees  as  a  method  of  police 
regulation.^  Power  "  to  erect"  wharves  includes  power  to 
establish  new  wharves  and  also  to  extend  existing  ones.^ 
Power  "  to  erect,  repair  and  regulate  "  does  not  give  any 
power  to  alienate  the  wharves  or  their  franchises.^ 

The  power  of  control  does  not  exist  in  Louisiana  except 
by  express  grant.*  The  better  and  general  view  is,  how- 
ever, that  public  wharves  may  be  regulated  to  the  same  ex- 
tent as  any  other  public  property,  such  as  city  parks  and 
streets.^  The  wharves  entail  expense  upon  the  corporation 
for  their  construction  and  care,  and  it  is  no  more  than  just 
that  the  burden  of  the  expense  should  fall  upon  those  who 
are  benefited  by  them  and  not  upon  the  body  of  the  tax- 
payers. Reasonable  fees  for  the  use  of  the  public  wharves 
may  be  exacted.  This  right  is  not  a  franchise  to  depend 
upon  a  grant  of  power,  but  it  results  from  the  proprietary 
interest  of  the  corporation.*  Such  a  charge  is  neither  a 
tax  in  the  constitutional  sense,  nor  as  a  tonnage  tax,  ob- 
noxious to  the  constitutional  prohibition  of  any  regulation 
of  inter-state  commerce.  This  is  true,  even  though  the 
tonnage  of  vessels  is  made  the  basis  by  which  the  amount 
charged  is  determined.'  But  the  fee  must  only  be  a  reason- 
In  California,  no  proprietary  interest  in  wharves  is  vested  in  corpora- 
tions. People  V.  Wharf  Co.,  31  Cal.  33;  Miles  v.  McDermott,  31  Cal. 
271. 

(1)  The  Geneva,  16  Fed.  Rep.  874;  s.  c,  28  AFb.  L.  J.  376. 

(2)  Hannibal  v.  Winchell,  54  Mo.  172. 

(3)  Eailroad  Co.  v.  St.  Louis,  2  Dill.  C.  C.  70. 

(4)  St.  Martinsville  v.  "  Mary  Lewis,"  32  La.  Ann.  1293, 

(5)  Muscatine  u.  Packet  Co.,  45  la.  185;  Keokuk  u.  Packet  Co.,  45  la. 
196. 

(6)  Murphy  v.  Montgomery,  11   Ala.  586;  Mobile  v.  Moog,  53  Ala. 
66] ;  Campbell  v.  Kingston,  14  U.  C.  C.  P.  285. 

(7)  Keokuk  v.  Packet  Co.,  45  la.  196;  Packet  Co.  v.  Catlettsburg,  105 
U.  S.  559 ;  Packet  Co.  v.  Keokuk,  95  U.  S.  80.     See  ante,  §  85. 


284  MUNICIPAL    POLICE    ORDINANCES.  [§  292. 

able  compensation  for  the  actual  use  of  the  public  wharves.^ 
The  owners  of  adjoining  property  may  be  prohibited  from 
using  the  wharves  without  paying  a  fee  and  obtaining  a 
formal  permit'from  some  corporate  officer.^ 

"Where  a  corporation  is  expressly  authorized  to  charge 
wharfage,  it  becomes  its  duty  to  do  so,  in  order  not  to 
throw  the  cost  of  supervising  them  on  the  general  tax- 
payer, and  it  could  not  establish  free  wharves.'  The  pay- 
ment of  the  fee  could  not  be  avoided  on  the  ground  that 
the  wharf  is  not  well  built  and  that  it  needs  further  im- 
provements.* The  fee  may  be  collected  from  all  kinds  of 
vessels,  even  such  as  are  licensed  by  the  state  or  federal 
government.^ 

Wharves  are  only  those  portions  of  the  shore  that  have 
been  improved  in  order  to  facilitate  the  landing  of  boats. 
The  use  of  an  unimproved  part  of  a  shore  would  not  sub- 
ject a  vessel  to  the  regular  wharfage  charge.^ 

Elevators,  as  beneficial  to  the  public,  may  not  be  erected 
by  the  corporation,  but  it  may  allow  others  to  erect  them 
on  the  public  wharves.  They  would  not  be  considered  pub- 
lic obstructions.^ 

Power  to  regulate  the  wharves  does  not  imply  power  to 
improve  the  harbor,  even  though  an  improvement  would 
greatly  facilitate  access  to  the  wharves.*  Nor  could  the 
corporation  define  high-water  mark,  and  declare  all  erec- 
tions of  buildings  below  it  to  be  nuisances.®  It  would  be 
equally  unlawful  to  create  an  artificial  dock  line  further 
toward  the  shore  than  the  navigable  portion  of  the  water, 

(1)  Cannon  v.  New  Orleans,  20  Wall.  577;  Railroad  Co.  v.  Ellerman. 
105  U.  S.  166  ;  Leathers  v.  Aiken,  9  F«d.  Rep.  679;  In  re  Hagaman,  20 
U.  C.  Q.  B.  583. 

(2)  Dubuque  v.  Stout,  32  la.  80. 

(3)  Mobile  v.  Moog,  53  Ala.  561. 

(4)  Prescottv.  Duquesne,  48  Pa.  St.  118. 

(5)  Packet  Co.  Keokuk,  95  U.  S.  80. 

(6)  Idem. 

(7)  Canal  Co.  v.  St.  Louis,  2  Dill.  C.  C.  70. 

(8)  Spengler  v.  Trowbridge,  62  Miss.  45. 

(9)  Evansville  v.  Martin,  41  Ind.  145. 


§  293.]  ORDINANCES    CLASSIFIED,    ETC.  285 

and  by  prohibiting  the  erection  of  wharves  over  or  beyond 
that  line,  in  fact  prevent  access  to  the  navigable  water.^ 
After  wharf  lines  are  established,  all  the  water  beyond  is 
considered  as  navigable.^ 

After  wharves  have  been  established  their  use  may  be 
regulated  directly  by  ordinance,  or  through  some  public 
wharf  or  harbor-master,  appointed  for  that  purpose. 
Any  reasonable  rules  may  be  adopted.  The  manner  of 
landing  at  wharves,  the  place,  the  length  of  their  occupa- 
tion, the  mode  of  their  use,  are  all  proper  subjects  of  regu- 
lation.^ The  transportation  of  goods  along  the  wharves, 
may  be  regulated  under  general  police  power.* 

§  293.  Conclusion. — After  reviewing  the  decisions  cov- 
ered by  this  work,  it  is  clear  that  the  drafting  of  valid  or- 
dinances ought  not  to  be  a  matter  of  great  difficulty  to 
any  council.  As  a  general  rule  any  ordinance  will  stand 
the  test  of  enforcement  which  has  been  enacted  in  good 
faith,  after  careful  deliberation,  and  to  remedy  a  real  mischief 
or  provide  for  a  real  want.  Nearly  every  feature  of  local  laws 
which  has  been  held  void  or  unlawful  had  its  origin  in 
local  prejudice  or  in  precipitate  action.  Ordinances  should 
be  enacted  with  the  legislative  mind  directed  to  rights  of 
offenders,  as  well  as  to  those  of  the  public ;  penalties  should 
be  made  as  light  as  possible  and  still  preserve  their  ef- 
fectiveness ;  burdens  of  every  kind  should  be  distributed 
as  equably  as  possibly;  plain  words  should  be  used  and  in 
their  ordinary  sense ;  and  the  remedy  should  be  carefully 
limited  to  accomplish  the  cure  of  the  evil  or  mischief 
against  which  the  ordinance  is  directed,  and  not  extended 
80  that  it  affects  or  restrains  harmless  acts  or  occupa- 
tions. 

(1)  Yates  V.  Milwaukee,  10  Wall.  497. 

(2)  Winpenny  v.  Philadelphia,  65  Pa.  St.  136. 

(3)  Horn  v.  People,  26  Mich.  222;  Keokuk  v.  Packet  Co.,  45  la. 
196. 

(4)  Ex  parte  Cass,  13  Pac.  Rep.  169  (Cal.  1887). 


286  MUNICIPAL    POLICE   ORDINANCES.  [§  293. 

The  ordinance  book  of  a  municipal  corporation  should 
neither  be  incumbered  with  useless  laws  nor  should  the 
community  be  obliged  to  suffer  inconveniences  or  to  endure 
evils  which  the  corporation  has  ample  power  to  prevent 
and  correct. 


APPENDIX. 


FOUR  SAMPLE  ORDINANCES. 

I.  An  ordinance.     To  regulate  strays. 

Be  it  ordained  by  the  [council  of  the  village  of  -B.],  that: 

.    Section  1.  The  [mayor]  shall  select  and  establish  a  place  within 

the  corporate  limits  for  impounding  stray  animals. 

Sec.  2.  The  marshal  [or,  any  police  officer]  shall  take  up  any 
animal  found  running  at  large  on  the  public  streets  or  places,  and 
impound  it ;  he  shall  at  once  give  notice  by  one  week's  publication 
in  some  newspaper  of  general  circulation  in  the  [village],  [describing 
the  animal,  and  giving  the  date  and  place  of  sale]  ;  that  it  will  be 
sold  to  defray  costs,  if  it  is  not  reclaimed  and  costs  paid  within  u 
week  from  the  publication  of  the  notice ;  if  not  then  reclaimed,  he 
shall  sell  said  animal  at  public  auction,  apply  the  proceeds  to  th(j 
payment  of  the  poundage  and  expenses,  and  retain  the  balance  in 
trust  for  the  owner  of  the  animal.  If  the  balance  is  not  claimed 
within  a  year  from  the  sale,  it  shall  be  paid  into  the  general  fund 
of  the  [village]. 

Sec.  3  The  following  shall  be  the  fees  charged  as  poundage,  one- 
half  of  which  shall  be  paid  to  the  marshal  [or,  pound-keeper],  who 
shall  have  charge  of  the  pound,  and  the  other  half  to  the  treasurer 
of  the  village  on  account  of  the  general  revenue  fund:  For  each 
seizure,  fifty  cents ;  for  each  day's  retention  of  each  animal,  of  the 
horse,  cattle,  ass,  goat,  sheep,  or  swine  kind,  fifty  cents;  for  each 
day's  retention  of  any  other  animal,  twenty-five  cents;  for  prepar- 
ing any  advertisement  and  for  each  auction,  regardless  of  animals 
sold,  one  dollar. 

Sec.  4.  Any  person  who  permits  an  animal  belonging  to  him  to 
run  at  large  upon  a  street  or  public  place  within  the  corporate  limits 
shall,  on  conviction  thereof,  be  fined  in  any  sum  not  more  than  five  dol- 
lars and  not  less  than  one  dollar. 

Sec.  5.  This  ordinance  shall  take  afect  five  days  after  its  publi- 
cation, as  provided  by  statute. 

(287) 


288  APPENDIX. 

II.  An  ordinance.  -  To  regulate  peddlers. 

Be  ii  ordained  by  the  [council  of  the  village  of  B.'],  that : 

Section  1.  A  peddler  is  a  person  who  carries  goods  with  him, 
either  on  his  person  or  in  some  vehicle,  and  sells  them  or  offers 
them  for  sale,  barter  or  exchange,  on  the  streets  or  public  places,  or 
at  stores  or  residences. 

Sec.  2.  The  mayor  shall  issue  a  license  to  peddle  to  each  appli- 
cant, on  the  payment  of  fifty  cents, ^  unless  the  applicant  is  known 
to  him  to  have  a  bad  reputation,  which  license  shall  be  good  for 
three  months. 

Sec.  3.  Any  person  who  peddles  without  such  license  shall,  on 
conviction  thereof,  be  fined  not  less  than  five  nor  more  than  twenty- 
five  dollars. 

Sec.  4.  This  ordinance  shall  be  in  effect  on  and  after  its  due 
publication. 

III.  An  ordinance.  To  regulate  the  erection  of  build- 
ings, so  as  to  insure  safety  from  fire. 

Be  it  ordained  by  the  [council  of  the  viEage  of  B."],  that : 

Section  1.  It  shall  be  unlawful  for  any  person  to  erect,  within 
the  limits  hereinafter  defined,  any  building,  more  than  ten  feet 
square,  or  eight  feet  high,  unless  the  outer  walls  thereof  are  con- 
structed of  iron,  stone,  brick  and  mortar,  or  some  of  those  materials^ 
eight  inches  thick,  in  a  building  less  than  twenty  feet  in  height  to 
the  eaves,  twelve  inches  thick  in  a  building  less  than  forty  and 
more  than  twenty  feet  in  height,  and  four  inches  additional  thick- 
ness for  each  additional  twenty  feet  in  height,  and  unless  the  roof 
is  covered  with  some  non-combustible  material. 

Sec.  2.  Erections  include  removals  from  one  lot  to  another. 

Sec.  3.  Any  person  who  violates  section  one  of  this  ordinance 
shall,  on  conviction  thereof,  be  fined  in  a  sum  not  less  than  twenty 
and  not  more  than  one  hundred  dollars.  [The  limit  must  be  confined 
to  the  amount  of  fine  lawful  for  the  corporation  to  impose.'\ 

Sec.  4.  [Describe  Hie  limits.'] 

Sec.  5.  Whenever  any  building  shall  be  erected,  or  in  progress 
of  erection,  in  violation  of  section  one  of  this  ordinance,  the  mayor 
[<yr,  chief  of  the  fire  department]  shall  notify  its  owner  in  writing  to 
either  remove  it  or  alter  it  so  as  to  comply  with  the  requirements 

(1)  The  fee  may  be  made  higher  for  a  peddler  who  carries  his  goods 
in  a  vehicle  than  for  one  who  carries  them  on  his  person. 


APPENDIX.  289 

of  this  ordinance,  and  if  such  notice  is  not  complied  with  within 
[twenty]  days,  the  mayor  [or,  chief]  shall  cause  such  building  to  be 
removed  at  its  owner's  expense,  the  material  removed  to  remain  in 
charge  of  the  corporation  until  the  expense  of  its  removal  is  paid  ; 
if  not  paid  within  five  days  from  its  removal,  such  material  shall  be 
sold  at  public  auction,  and  the  proceeds,  after  satisfying  the  ex- 
pense of  removal  and  sale,  paid  over  to  the  owner  of  the  building. 
Such  auction  to  be  held  at  a  time  and  place  designated  in  a  notice 
to  be  published  in  a  newspaper  of  general  circulation  in  the  [village]. 
Sec.  6.  [Provision  may  be  made,  if  desirable,  for  the  erection  of 
a  prohibited  building  under  license  or  permit  to  be  granted  by  the 
council  or  the  chief  of  the  fire  department.] 

IV.  An  ordinance.     To  protect  public  property  from 
injury. 

Be  it  ordained  by  the  [council  of  the  village  of  B."],  that : 

Section  1.  No  person  shall  cut,  mark,  burn,  tear  down,  deface, 
or  destroy  any  building,  or  portion  of  a  building,  any  walk,  bridge, 
fence,  tree,  plant,  ornamental  structure  or  object,  post,  pipe,  stone, 
wire,  or  any  other  property  not  included  in  the  foregoing  enumera- 
tion, belonging  to  or  used  by  the  village  or  located  on,  above,  or 
under  its  streets,  or  public  places,  or  buildings,  without  lawful 
authority. 

Sec.  2.  Any  person  violating  the  provisions  of  this  ordinance 
shall,  on  conviction  thereof,  be  fined  in  a  sum  not  less  than  two  dol- 
lars nor  more  than  fifty  dollars. 

Sec.  3.  [As  to  date  of  going  into  efiect.] 
19 


INDEX. 


[REFERENCES  TO  SECTIONS.] 


Abatement  of  nnlawful  business,  219. 
Aco[aittal,  effect  of  on  subsequent  prosecution,  198. 
Action,  when  brought  in  state  court,  166. 

restricted  to  special  tribunal,  166. 

form  of,  168. 

nature  of,  169. 

civil  or  criminal,  169,  174. 

quasi-criminal,  169. 

joinder  of  causes  of,  171. 

when  enjoined,  205. 

Adjournment  of  council,  38. 

See  Meetings. 

Alabama,  law  of  double  offenses  in,  92. 

nature  of  action  in,  170. 
Alleys,     See  Streets. 
Amendments  to  ordinances,  64. 
Amusements,  license  of,  273. 
"And"  used  disjunctively,  195, 
Animals,  what  are  reasonable  regulations  of,  130. 

what  are  not,  131. 

belonging  to  non-resident,  137. 

remedies  against  strays,  161. 
See  Strays. 

use  of  streets  for  driving,  245. 

Appeal,  remedy  of,  207. 
how  effected,  207. 
what  considered  on,  207. 
rules  of  practice  on,  209. 
record  of  lower  court,  209, 

Appropriations,  for  police  purposes,  289. 

to  aid  the  administration  of  justice,  290. 

for  defense,  290. 

to  pay  attorneys,  291. 
Arraignment,  of  the  defendant,  182.) 

(291) 


292  INDEX. 

Architects,  when  may  be  employed,  217. 
Arrests,  of  the  oflFender,  178. 

with  or  without  warrant,  178,  180. 

form  of  warrant,  179. 

what  constitutes,  180. 

must  be  as  preliminary  to  action,  180. 

what  are  not  reasonable  regulations  of,  131. 

rewards  for,  290. 
Assaults,  when  may  be  regulated.  213,  220. 
Assessments,  charged  against  realty,  164. 

for  building  sidewalks,  228. 

local,  for  police  purposes,  282. 
Assumpsit,  action  in  at  common  law,  168. 
Attorneys,  not  in  a  "business,"  270. 

employment  of  corporation,  291. 
Auctions,  what  is  reasonable  regulation  of,  131. 

when  regulation  is  in  restraint  of  trade,  133. 

Authority  to  pass  ordinance  need  not  be  recited  in  ordinance,  73. 
Bay-windows,  234. 

right  of  action  for  unlawfully  constructing,  7 

Bill  of  exceptions,  what  should  contain,  209. 
when  taken,  209. 

Billiard  tables,  amount  of  license  fee,  260,  273. 
Board  of  health,  when  may  pass  rules,  195. 
erection  and  powers  of,  209. 

Bond  on  appeal,  207. 

Breaches  of  the  peace,  under  what  power  may  be  punished,  213,  220i 

Bread,  extent  of  regulation  of,  215.  « 

reasonable  regulations  of,  1 30. 

when  may  be  forfeited,  160. 
Bridges,  what  is  reasonable  regulation  of,  130. 
Buildings,  power  to  provide  public,  15,  289. 

reasonable  regulation  of,  130. 

removal  under  police  powers,  213. 

extent  of  health  regulations  of,  215. 

used  for  slaughter  houses,  219. 

within  fire  limits,  222,  223. 

obstructing  the  streets,  233,  234. 

moving,  236. 
Building  materials,  when  allowed  on  street,  231. 
Burials,  regulation  of,  220. 
Businesses,  what  regulation  of  conduct  reasonable,  130,  213. 

what  not  reasonable,  131. 


INDEX.  293 


Businesses — Continued. 

classified  for  police  purposes,  135. 
licensing  of  business  privileges,  270. 
closing  on  Sunday,  288. 

Butchers,  reasonable  regulation  of,  130. 

See  Slaughter-houses. 
Bicycles,  247. 
By-law,  definition  of,  1. 
California,  nature  of  action  in,  170. 
Canada,  mode  of  declaring  ordinance  void,  210. 
Cemeteries,  reasonable  regulation  of,  130. 

unreasonable  regulation  of,  131. 

when  may  be  regulated,  220. 

not  nuisances  per  se,  255. 

Certiorari,  remedy  of,  204. 

what  reviewed  thereby,  204. 

municipal  corporation  can  not  have,  204. 

record  from  the  lower  court,  209. 

Charter,  must  be  observed,  125. 

nature  of,  2. 

prohibition  in,  needs  no  ordinance,  4. 

Chinamen,  unlawful  regulation  of,  84. 

Clerk  of  council,  signature  to  ordinance,  48. 
deputy,  48 

Closing  hours  of  saloons,  277. 
Coal,  weighing  of,  218. 
Colorado,  law  of  double  offenses  in,  93. 
Commerce,  must  not  be  regulated,  85. 
regulation  of  by  license,  270. 

Commitment,  order  of,  203. 

form,  contents,  when  made,  203. 

Common  carrier,  regulation  under  police  power,  213. 
Compensation,  benefits  derived  are  sufficient,  212. 
Complaint,  must  be  in  writing,  172. 

little  formality  in,  172 

what  must  state,  172. 
See  Title. 

full  allegation  of  ofiense,  173. 

how  ofiFenses  described  in,  173. 

must  follow  definition  of  ordinances,  173. 

surplusage  in,  173. 

must  refer  to  ordinance  and  how,  174. 

how  ordinance  pleaded,  174. 


294  INDEX. 

Complaint — Continued. 

need  not  negative  exceptions,  175. 

form  of  conclusion,  176. 

signature  to  complaint,  177. 
Conclusion.     See  complaint. 
Concurrent  powers  construed,  21. 
Condition  precedent  to  exercise  of  power,  24,  35. 

compliance  need  not  be  pleaded,  73. 

Connecticut,  law  of  double  oflfenses,  94. 

Constitutional  provisions,  as  to  scope  of  law,  74. 
effect  on  tax  ordinance,  286. 

Construction  of  ordinance,  like  that  of  statute,  2. 
of  power,  against  corporation,  ]  7. 
of  enumeration,  18,  194. 
rule  of  ejusdem  generis,  20. 
intention  of  legislature  governs,  17. 
of  statutory  directions,  35. 
general  rules  as  to  powers,  33. 
of  common  phrases  in  grants  of  power,  25<-32. 
of  concurrent  powers,  21. 
general  rules  as  to  ordinances.  193. 
leniency  toward,  193. 
words  have  full  meaning,  193 

examples  of  application  of  rules  of  construction,  195. 
of  regulations  of  vehicles,  248. 

Corporate  powers,  scope  of,  8. 
Corporate  purposes,  scope  and  construction,  26. 
Costs,  when  collected  of  defendant,  154, 
Council,  alone  can  pass  ordinances,  5. 

can  not  bind  successors,  9,  82. 

de  facto  can  not  act,  36. 

members  properly  elected,  36. 

meetings  of,  37. 

joint  action  of  bi-cameral,  39. 

what  constitutes,  39. 

quorum,  40-45. 

members  disqualified  by  interest,  42. 

vote  of  mayor,  44. 

suspension  of  the  rules,  45. 

when  may  reconsider,  46. 

readings  of  the  ordinance,  47. 

unfinished  business,  47. 

clerk's  signature,  48. 

record  of  its  action,  56-58. 

informalities  subsequently  cured,  59. 

power  to  repeal,  60,  GOa. 


INDEX.  295 


Court,  only  such  as  authorized  can  be  erected,  166. 

limited  in  jurisdiction,  166, 
Dakota,  law  of  double  oflFenses,  95. 
Dead  animals,  removal  of,  220. 
Debt,  when  action  in  will  lie,  168. 
Defendant,  testimony  of,  192. 
Defenses,  prior  conviction  under  state  law,  91,  92,  120. 

non-residence,  143,  196. 

ignorance  of  the  law,  143,  196. 

former  conviction  under  ordinance,  198. 

irregularities  in  formation  of  corporation,  199. 

other  persons  not  punished,  199. 

offense  unavoidable,  199.  , 

statute  of  limitations,  196. 

repeal  of  ordinance,  197. 
Defense,  appropriation  for  public,  290. 
Defininiteness,  in  ordinance  terms,  78-81.  , 

Definitions,  "  corporate  powers,"  8. 

"corpoi-ate  purposes,"  26. 

"general  welfare,"  27. 

"  peace  and  good  government,"  28. 

"  to  regulate,"  30. 

"  to  suppress  and  restrain,"  31. 

"  to  establish,"  32. 

"  newspaper,"  54. 

"  drove,"  78. 
of  state  statute  followed,  122. 

'"penalty,"  147. 

"  crime,  criminal  prosecution,"  169. 

"  within  the  city,"  195. 

'•  street,"  195,  224. 

"  second-hand  dealers,"  195. 

"  keeping  open,"  195. 

"  along,"  195. 

"  alley,"  224. 

"paving,"  227, 

"  sidewalk,"  228. 

•'obstruction,"  230,  232. 

"encroachment,"  232. 

"  running  at  large,"  249. 

■'nuisance,"  251. 

"license,"  257. 

"peddler,"  272 

"  retail,"  277,  278. 

"  sale,"  277. 

"  wholesale,"  278. 


296  INDEX. 

Discretion,  in  council,  8a. 

in  officer  granting  license,  13,  263. 

when  its  exercise  conclusive,  128,  129. 

as  to  penalty,  148. 

presumed  to  be  reasonable,  188. 

how  and  when  questioned,  188. 

of  board  of  health,  219. 

in  declaring  nuisances,  253. 

in  fixing  amount  of  license,  258,  280. 

Discrimination,  as  test  of  validity,  135, 136. 
as  to  non-residents.  1 37. 
in  granting  licenses,  268,  280. 
in  taxing,  287. 

Diseases,  prevention  of,  220. 

Distress,  can  not  be  resorted  to,  84,  159. 

Dogs,  regulated  to  preserve  security,  213. 

license  of,  274. 

reasonable  regulations,  1 30. 

regulated,  not  prohibited,  84. 
Doorsteps,  how  restricted,  234. 

Drummers,  license  of,  271. 

regulation  of,  85. 

non-residents,  137. 
IJjnsdem  generis,  rule  of  in  construction  of  powers,  20L 
Elevators,  regulation  of,  213. 
England,  action  in  nature,  of  debt,  166. 
English  language,  ordinance  must  be  in,  68. 
English  decisions,  when  applicable,  123. 
Enumeration,  how  construed,  18, 19, 194. 

part  void,  139. 
Establish,  scope  of  power  to,  32. 
Error,  writ  of,  208. 

petition  in,  208. 

what  reviewed  under,  208. 

record  from  lower  court,  209. 

petition  on  writ  must  assign  errors,  209. 

Estoppel,  200. 

of  the  corporation,  201. 

to  claim  error  by  payment  of  fine,  209. 

Evidence,  of  legislative  intent,  17. 
rules  to  be  adopted,  183. 
judicial  notice,  184. 
proof  of  ordinance,  185. 


INDEX.      ._  297 


Evidence-"'  Continued.  « 

how  proved,  185,  186, 
what  not  necessary  to  prove,  185. 
record  of  council  proceedings  as  evidence,  186. 
proof  of  publication  of  ordinance,  187. 
how  publication  proved,  187. 
presumption  that  ordinance  is  reasonable,  188. 
when  and  how  rebutted,  188. 
reasonableness  a  question  of  law,  189. 
proof  of  time  and  place  of  offense,  190. 
proof  that  act  not  within  exceptions,  191. 
testimony  of  the  defendant,  192. 

See  Construction  of  Ordinances. 
in  liquor  cases,  279. 

Ex  post  facto  ordinances,  23. 
Exceptions,  proof  that  act  not  within,  191. 
Execution,  when  issued  to  collect  fine,  155. 
Express  companies,  reasonable  regulation  of,    130. 
Expressio  unius  est  exclnsio  alterius,  18, 195. 
Eerry,  regulation  of,  not  regulation  of  commerce,  85. 
Fine,  for  owning  stray,  249. 

when  recovered  back  after  payment,  209. 
See  Remedies. 
Eire,  what  may  be  delegated  to  fire  department,  12. 

power  to  purchase  engine,  15. 

unreasonable  regulations,  131. 

regulations  to  prevent,  221,  222. 

limits,  222. 

erection  of  buildings,  222,  223. 

water  supply  for,  243. 

license  to  erect  buildings,  graded,  268. 
Eisheries,  denial  of  use  to  non-residents,  137. 
Elorida,  law  of  double  oflfenses,  96. 
Foreign  goods,  regulation  of  sale,  85. 
Foreign  sovereigns,  powers  derived  from,  124. 
Food  supply,  regulation  of,  217,  218. 

Forfeiture  of  property,  159-161. 
notice  to  owner,  162. 

See  Remedies. 
of  stray  animals,  249. 

Form  of  ordinance,  68. 

See  Ordinance. 
Oambling,  reasonable  regulations  of,  130, 
Oas  company,  regulation  of,  131. 


298 


INDEX. 


Gas  supply,  use  of  streete  for,  244. 

General  welfare  clause,  construction  and  scope  of,  2  7. 

Georgia,  nature  of  action  in,  170. 

law  of  double  offenses  in,  97. 
Gradingr,  of  streets,  226, 

of  licenses,  268. 

of  taxes,  287. 

Gravamen  criminis,  proof  of,  190. 
Gunpowder,  reasonable  regulation  of,  ISa 
Habeas  corpus,  writ  of,  205. 

what  examined  under,  205. 
Hay,  regulation  of  sale  of,  218. 
Health,  power  to  protect,  implied,  15, 

reasonable  regulations,  130. 

unreasonable  regulations,  131. 

regulations  to  promote  under  police  power,  213. 

necessity  and  scope  of  regulation.  214. 

boards  of  health,  215. 

See  Boards  of  Health. 

regulations  of  articles  of  food,  216,  218. 

market  regulations,  217. 

slaughter-houses,  219. 

cemeteries,  220. 

offal,  220. 

dead  animals,  220. 

diseases,  220. 

hospitals,  220. 

hog-pens,  220.  • 

odors,  220. 

Hogs,  regulation  of  keeping,  220. 
Hospitals,  erection  of,  220. 

regulation  of,  213. 
Hotels,  regulation  of  on  Sunday,  288. 

Ignorance  of  ordinance,  no  excuse,  196. 
Ill-fame,  houses  of  regulated,  213,  254. 

Illinois,  nature  of  action  in,  170. 

law  of  double  offenses  in,  98. 
Imprisonment,  in  default  of  payment,  155, 166. 

does  not  satisfy  judgment,  157. 

does  not  entitle  to  jury  trial,  84. 

form  of  judgment  to  imprison  for,  156. 

must  be  a  lawful  judgment,  158,  163. 

as  a  penalty,  158. 


INDEX.  299 

Imprisomnent — Continued. 

in  default  of  payment,  155,  156. 

Inclosnres,  on  streets,  232. 

iBCOme,  licenses  graded  according  to,  268. 

Indiana,  nature  of  action  in,  170.  ' 

law  of  double  offenses  in,  99. 
!Knfcrmation.     See  Complaint. 
Injunction,  of  passage  of  ordinance,  6. 

in  higher  court,  202. 

not  iu  local  court,  202. 

when  will  lie,  206. 

not  to  enforce  ordinance,  206. 

Insurance  companies,  license  of  foreign,  270. 
Intent,  of  violation  can  not  be  considered,  264,  279. 
Interest  of  magistrate,  by  reason  of  citizenship,  167. 

Intoxicating  liquors,  what  regulation  reasonable,  130. 
what  not  reasonable,  131. 
what  in  restraint  of  trade,  134. 
what  discriminating,  136. 
allegations  of  the  person  to  whom  sold,  173. 
regulated  to  preserve  morals,  213. 
regulation  of  by  license,  275. 
as  nuisances,  275-278. 
other  regulations  than  by  license,  277. 
definitions  of  ordinary  terms,  278. 
evidence  in  liquor  cases,  279. 
how  regulated  on  Sunday,  288. 

Introduction  to  ordinance,  72. 
Iowa,  law  of  double  offenses  in,  100. 

nature  of  action  in,  170. 

joinder  of  causes  of  action  in,  171. 

Jews,  regulation  of  on  Sunday,  288. 

Joinder  of  causes  of  action,  171. 
option  with  plaintiff,  171. 

Joint  sessions,  of  council,  39. 

Judgment,  form  to  imprison  for  non-payment  of  fine,  156. 
must  be  a  lawful  judgment,  158,  163. 
form  of  ordinary,  202. 
in  action  of  debt,  202. 
when  may  be  passed,  202. 
unconditional,  202. 
what  may  include,  202. 
surplusage  in,  202. 
conclusiveness  of,  202,  209. 


800  INDEX. 

Judicial  notice,  of  ordinance  by  state  court,  209. 
Jorisdiction,  restricted  to  statutory  limits,  166. 

objections  must  be  made  in  lower  court,  166. 

does  not  depend  on  validity  of  ordinance,  166. 

over  private  property  of  railroad,  239. 
See  Remedies;  Territory. 

Jury,  can  not  consider  reasonableness,  189. 
nor  questions  of  construction,  193. 

Jury  trial,  must  be  provided  for,  169. 

when,  if  compulsory  in  other  cases,  170a. 

only  applies  to  oflFenses  covered  by  the  state  law,  169. 

when  must  be  granted,  181. 

rights  of  challenge,  181. 
Kansas,  nature  of  the  action  in,  170. 
Kentucky,  law  of  double  oflFenses  in,  102. 
Laundry,  reasonable  regulation  of,  130. 

Law  of  the  land,  what  is,  123. 

Libel,  regulations  of  as  against  security,  213. 
License,  no  action  for  unlicensed  competition,  7. 

what  power  over  may  be  delegated  to  oflBcers,  12. 

power  to  decide  fitness  of  applicant,  12,  13. 

contents  of  the  ordinance,  80. 

state  and  municipal  licenses,  121. 

■when  revoked  as  a  penalty,  150,  160. 

exempts  from  unreasonable  ordinance,  195. 

eflfect  of  refusal  on  proper  application,  201. 

amount  fixed  by  resolution,  21  Oa. 

for  market  privileges,  217. 

regulation  by,  256-280. 

power  to,  how  granted,  256. 

.nature  of  license,  257,  265. 

limit  of  license  regulation,  257. 

must  not  amount  to  a  tax,  258. 

what  amount  may  be  charged,  259,  270. 

examples  of  amount,  260. 

form  of  the  license,  261. 

contents  of  the  license  ordinance,  262. 

amount  fixed  by  resolution,  262. 

imposing  discretion  in  oflBcers,  263. 

number  can  not  be  limited,  263. 

the  penalty  for  refusal  to  take  out,  264. 

oflfenses  under  license  ordinance  continuing,  264. 

eflFect  of  a  license,  265. 

does  not  exempt  from  other  regulations,  265. 

conditions  to  the  grant,  266. 


INDEX.  301 

License — Continued. 

revocability,  267. 

when  and  how  revoked,  267, 

grading  and  discrimination,  268. 

classification  of  things  licensed,  268. 

power  dormant  until  exercised,  269. 

not  provided  by  resolution,  269. 

of  business  privileges,  270. 

same  person  in  separate  business,  270. 

of  transient  dealers,  271. 

of  peddlers,  272. 

of  amusements,  273. 

of  dogs,  274. 

of  sale  of  liquors,  275-279. 

a  personal  privilege,  272. 

uniformity  in,  280. 

distinct  from  taxation,  284. 

not  in  Louisiana,  284. 
Lotteries,  may  be  regulated,  87. 
Louisiana,  law  of  double  offenses  in,  103. 
Magistrate,  not  disqualified  by  citizenship,  167. 
HarketS,  amount  of  meat  license  fee,  260. 

power  to  establish  not  to  be  delegated,  IL 

what  regulations  are  reasonable,  130. 

what  are  not,  131. 

what  in  restraint  of  trade,  133,  134. 

regulations  under  health  power,  213, 

houses,  when  and  how  erected  and  extent  of  regulation,  217.. 
See  Health. 

Maryland,  law  of  double  offenses  in,  104. 

Massachusetts,  law  of  double  offenses  in,  105. 

nature  of  action  in,  170. 
Mayor,  when  may  vote,  44. 

signature  of  ordinance  by,  49. 

approval  of  ordinance,  50,  49. 

what  needs  approval,  50. 

how  approval  signified,  51, 

veto,  51. 

Meat.     See  Markets, 

Medicines,  to  whom  may  be  furnished,  215, 

Meetings  of  council,  37. 

adjourned  and  special,  38. 

quorum,  40. 
Merchant,  who  is  a,  271. 


302  INDEX. 

Michigan,  nature  of  the  action  in,  170. 
law  of  double  oflfenses  in,  106. 

Minnesota,  nature  of  action  in,  170. 

law  of  double  oflfenses  in,  107. 
Missonri,  nature  of  action  in,  1 70. 

law  of  double  oflfenses  in,  108. 
Mittimus,  form  of,  203. 
Monopolies,  unlawful,  132. 

See  Discrimination  and  Eestbaint  op  Tradk. 
Morals,  regulations  to  protect,  213. 
Motion,  what  made  on  trial,  209. 
Motives,  for  violation,  when  considered,  195. 

Municipal  corporations,  considered  as  an  agent,  8. 

three  classes  of  power,  8. 

source  of  power,  14,  15. 
Navigable  waters,  extent  of  jurisdiction  over,  142. 
Nebraska,  nature  of  action  in,  170. 

law  of  double  oflfenses,  109. 
North  Carolina,  law  of  double  oflfenses,  110. 
New  Hampshire,  nature  of  action  in,  170. 
New  Jersey,  nature  of  action  in,  170. 

certiorari  in,  204. 

law  of  double  oflfenses,  111. 
New  Orleans,  not  limited  as  to  the  amount  of  license,  268. 
New  York,  nature  of  action  in,  170. 

law  of  double  oflfienses,  112. 
New  York  City,  jurisdiction  over  adjoining  waters,  142. 
Notice,  judicial,  184. 

to  owner  of  nuisance,  253. 

when  estoppel  to  object  to  form,  200. 

Non-residents,  taxation  of,  287. 

how  affected  by  penal  ordinances,  143. 

discrimination  as  to,  137. 
See  Remedies. 
Nuisances,  can  not  be  abated  without  ordinance,  3. 

can  not  be  legalized  by  ordinance,  7. 

what  the  ordinance  should  provide,  81. 

when  abated,  160. 

regulation  of  under  police  power,  250. 

definition,  251. 

how  regulated,  251. 

must  be  an  actual  nuisance,  252. 

qaust  be  a  judicial  determination,  253. 


INDEX.  303 


Nuisances — Continued. 

examples  of  nuisances,  254. 

of  things  that  are  not  per  se,  255. 
Obstructions,  to  streets,  230,  231-237. 

by  unloading  goods,  231,  237. 

by  building  material,  231. 

by  inclosures,  232. 

by  public  buildings,  233. 

by  other  buildings,  234. 

projections  into  the  street,  234. 

stalls  and  booths,  234. 

snow,  235. 

moving  buildings,  236. 

by  attracting  crowds,  237. 
Oflfal,  regulation  of,  130,  220. 
Offense,  may  be  double,  89  ei  seq. 
OfS.cerS,  rewards  to  for  arrests,  290. 

their  right  to  their  salaries,  67. 
Ohio,  nature  of  action  in,  170. 

law  of  double  oflFenses  in,  113. 
Opium  smoking,  when  punishable,  144. 
Ordinances,  definition  of,  1. 

are  laws,  2. 

power  to  pass.     See  Power. 

necessity  of  formal  passage,  3,  34. 

not  self-executing,  3. 

not  necessary  to  enforce  charter  prohibition,  4. 

passed  by  governing  body,  5. 

must  regulate  corporate  affairs,  6. 

uniformity  within  municipality,  6. 

must  not  regulate  civil  liabilities,  7. 

retroactive,  23. 

statutory  direction  mandatory,  35. 

passed  by  de  facto  council,  36. 
See  Passage  and  Council. 

changes  during  passage,  47. 

veto  of,  51. 

publication  of,  52-55. 

record  of,  56-58. 

repeal  of,  60-65. 

must  be  by  council,  60a. 

eJBfect  on  vested  rights,  67. 

form  of,  61. 

by  implication,  62,  63. 


304  INDEX. 

Ordinances —  Continued. 

saving  clause,  66. 

amendments  to,  64. 

form  of  ordinance,  68. 

constituent  parts  of,  69. 

like  resolutions  in  form  when,  70,  210. 

title  oT,  71. 

introduction  to,  72. 

need  not  refer  to  power,  73. 

scope  of,  74. 

reference  to  existing  ordinances,  75. 

time  of  going  into  effect,  76. 

must  fix  penalty,  77. 

definiteness  of  its  terms,  78. 

as  to  penalty,  79. 

in  license  ordinances,  80. 

in  nuisance  ordinances,  81. 

can  not  bar  further  legislation,  82. 
See  Rules  op  Validity. 

against  offense  under  state  law,  89-90. 

may  be  retroactive,  138. 

once  void,  always  void,  138. 

partial  invalidity,  139. 

must  be  rea.sonable,  127-131. 

must  not  restrain  trade,  132-134. 

must  not  discriminate,  135-136. 

must  accord  to  charter  and  state  law,  88-125. 
See  Remedie-:  . 

operate  over  whom.     See  Remedies. 
Oregon,  law  of  double  oflFenses,  113. 

Partial  invalidity  of  ordinances,  139. 
Parties,  corporation  proper  plaintiff;  168. 
Partners,  liability  for  unlawful  acts,  279. 

each  liable  to  tax,  287. 
Passage,  statutory  directions  are  mandatory,  35. 

by  council  de  facto,  36. 

meetings  of  council,  37. 
See  Meetings. 

in  joint  session,  39. 

quorum,  40,  41. 

majority  of,  sufficient,  43. 

in  joint  session,  40. 

special  holdings  as  to,  42. 

vote  of  ftiayor,  44. 

suspension  of  the  rules,  45. 

reconsideration  of  vote,  46. 


INDEX.  805 

PftSSage —  Continued. 

readings  of  the  ordinance,  47, 

change  in  ordinance  during  passage,  47. 

signature  of  clerlt,  48. 

signature  of  mayor,  49. 

approval  by  mayor,  49-51. 

veto.  51. 

publication,  52-55. 

record  of  ordinance,  56. 

what  it  must  show,  57. 

record  of  vote,  58. 

informalities  subsequently  cured,  59. 
Patented  articles,  sale  of  restricted,  272. 
Paving,  of  the  streets,  227. 

by  railroad  company,  241. 
Pawnbrokers,  regulation  of,  213. 

amount  of  license  fee,  260. 

Payment  of  fine  acts  as  estoppel,  209. 
Peace  and  good  government,  scope  of,  28. 

Peddlers,  not  transient  dealers,  271. 

Peddling,  reasonable  regulation  of,  130. 

license  of,  272. 
Penalty,  must  be  fixed  by  ordinance,  77. 

definitely  fixed,  79. 

when  part  void,  129,  159. 
See  Remedies. 

may  be  double,  state,  and  local,  169. 

effect  of  conviction  of  either,  ]  98. 

in  license  ordinances,  264. 

Pennsylvania,  nature  of  the  action  in,  170. 
rule  as  to  power  being  continuing,  227. 
Plea,  to  complaint,  182. 
Pleading.     See  Complaint. 

Police  regulations,  examples  of  scope  of,  28. 

nature  of,  211. 
scope  and  purpose,  212. 
regualting  Sunday,  288. 
regulating  liquors,  275-279. 
appropriations  for,  289. 
Pounds,  when  established,  249. 
for  animals,  161. 

Power  to  pass  ordinances,  statutory  directions  mandatory,  227. 
need  not  be  referred  to  in  ordinance,  73. 
continuing,  82.  . 

20 


306 


INDEX. 


Power  to  pass  OrQm&nces— Continued. 

derived  from  foreign  sovereignties,  124. 

may  be  delegated  to  municipal  corporation,  2. 

may  not  be  delegated  by  municipal  corporation,  5,  10. 

not  a  vested  right,  8. 

discretionary,  8a! 

continuing,  9. 

what  may  be  delegated  to  oflBcers,  10-12. 

source  of  power,  14,  15. 

can  not  be  enlarged  by  council,  15. 

what  are  implied,  15. 

limitations  of  inherent  power,  16. 

construed  strictly  against  the  corporation,  17. 

construction  of  enumeration  in,  18,  19. 

construction  of  special  grants  of  power,  19. 

rule  of  ejusdem  generis,  20. 

rule  when  two  powers  concur,  21. 

general  grant  limited  by  special,  21. 

greater  includes  less,  22,  23. 

conditions  to  their  exercise,  24,  35. 

construction  of  common  phrases  in  grants,  25-32. 

"  corporate  purposes,"  26. 

"general  welfare,"  27. 

"peace  and  good  government,"  28. 

other  expressions,  29. 

"  to  regulate,"  30. 

"to  suppress  and  restrain,"  31. 

miscellaneous  particular  expressions,  32. 

"  to  establish,"  32. 

general  rules  of  construction,  33. 
Fresnmption,  of  regularity  of  proceedings,  209. 

Principal  and  agent,  liability  of  principal,  199. 

in  sale  of  liquors,  279. 

Private  property,  how  far  regulated,  144. 
Procedure,  on  appeal  and  error,  207-209. 

must  conform  to  state  court,  169,  170a. 

arraignment  and  plea,  182. 
Processions,  unreasonable  regulations  of,  131. 
Prostitutes,  unlawful  regulation  of,  84,  131. 
Publication,  proof  of,  187. 

of  ordinance,  52. 

construction  of  statutory  provisions  for,  53. 

time  of,  53 

in  what  paper,  54. 

form  of  the  notice,  55. 


INDEX.  807 

Pnnislinieilt      See  Remedies. 

Quarantine  regulations,  220. 

Quorum,  39-43. 

Railroads,  may  not  delegate  power  to  grant  franchises  to,  11. 

what  regulations  are  reasonable,  130. 

what  are  not  reasonable,  131. 

what  restrain  trade,  134 

its  premises  quasi-public,  145. 

authority  to  run  over  private  streets,  146. 

regulation  of  speed  of  trains,  213. 

regulation  of  steam  railroads,  238,  239. 

use  of  streets  for,  238. 

rule  in  New  York  and  New  Jersey,  238. 

rate  of  speed,  other  conditions,  239. 

street,  right  to  permit,  240. 

regulations  of,  241. 

Ratification  to  validate  void  acts,  138. 
Readings  of  ordinance,  47. 
Realty,  remedy  against,  155,  164. 

Reasonableness,  presumption  in  favor  of,  188. 

evidence  to  rebut,  188. 

question  of  law,  189. 

as  test  of  validity,  127-131. 

Reconsideration  of  vote,  46. 

Record  of  passage  of  ordinance,  56. 

what  must  contain,  57. 

of  votes,  .'>8. 

use  as  evidence,  186. 

Record  of  court  proceedidgs,  what  must  contain,  209. 
on  error,  209. 
on  appeal,  207-209. 
mention  of  bill  of  exceptions,  209. 

Reference  in  ordinance  to  other  ordinance,  75. 
Regulation,  scope  of,  30. 

Religious  liberty,  and  Sunday  regulations,  288. 
Remedies,  nature  and  necessity  of,  140. 
over  what  teritory  eflfectual,  141. 
extraterritorial  effect,  142. 
affects  what  persons,  143. 
when  part  of  corporate  territory  exempt,  144. 
railroad  premises,  145. 
streets,  regardless  of  title,  146. 
penalties,  definition,  147. 

power  to  inflict,  when  implied,  147. 


308 


INDEX. 


Eemedies—  Continued. 

what  kind  lawful,  148. 

are  not  licenses,  149. 

fines,  150. 

amount,  151. 

cumulative,  152. 

for  second  oflFense,  153. 

costs,  154. 

imprisonment  in  default  of  payment,  155,  156. 

does  not  satisfy  judgment,  157. 

labor  during,  157. 

imprisonment  as  a  penalty,  158. 

forfeiture,  159,  160. 

destruction  of  property,  160. 

against  strays,  161. 

disposition  of  proceeds  of  sale,  161, 

notice  to  owner,  162. 

judicial  determination,  163. 
forfeiture  of  realty,  164. 
distress  not  lawful,  84. 

Repeal  of  ordinance,  effect  on  license,  266. 

effect  on  prosecution,  197. 

of  repealing  ordinance,  197. 

general  treatment,  60-65. 

must  be  by  council,  60a. 

form  of  repealing  act,  61. 

by  legislature  by  implication,  62. 

by  council  by  implication,  63. 

saving  clause,  66. 

effect  on  vested  rights,  67. 

of  state  law,  does  not  invalidate  ordinance  when,  138L 
Residence,  when  a  defense,  196. 

Resolution,  when  ordinance  may  be  in  form  of,  70. 
nature  of  and  effect,  210. 
when  sufficient,  210,  210a. 
how  passed,  210. 
to  fix  license  fee,  262,  264. 
to  ordain  license,  269. 

Restaurant,  reasonable  regulation  of,  130. 
Restraint  of  trade,  132-134. 
"Restrain,"  meaning  of  "  to  restrain,"  31. 
Retroactive  ordinances,  23. 
Revenue,  power  to  tax  for,  283, 
Reward  for  arrests,  290. 


INDEX."  309 


Khode  Island,  law  of  double  offenses  in,  115. 
Kiots,  regulation  of  to  insure  security,  213. 
Rubbish,  regulation  of,  213. 

Rules  of  validity,  83-139.  . 

fdei,  legit  et  rationalii,  83. 

must  accord  to  IT.  S.  constitution  and  laws,  84. 

law  of  the  land,  84,  123,  124. 

regulation  of  commerce,  85. 

of  U.  S.  mails,  86. 
interference  with  U,  S.  license  laws,  87. 
consistence  with  state  law,  88. 

as  to  minor  offenses,  89. 

punishment  may  be  greater,  90. 

one  conviction  to  bar,  91. 

holdings  in  the  various  states,  92-120. 
consistency  with  state  license  laws,  121. 
policy  of  state  legislation,  122. 
corporate  charter,  125. 
reasonableness,  127-131. 
restraint  of  trade,  132-134. 
discrimination,  135-136. 

against  non-residents,  137. 
once  void,  always  void,  138. 
partial  invalidity,  139,  159. 

Sale  of  commodities,  what  reasonable  regulation  of,  130. 

what  is  not,  131. 

Saloons,  regulations  of,  276-279. 
Saving  clause  in  ordinance,  66. 

Scbool,  unlawful  regulation  of,  131. 

Security  and  comfort,  regulations  to  preserve,  213. 

Selling  goods  on  the  streets,  245. 

Sewerage  system,  242. 

beyond  corporate  limits,  142. 

reasonable  regulation  of,  130. 

power  to  fix  size  may  not  be  delegated,  11. 
Shore,  reasonable  regulation  of,  130. 
Sidewalks,  power  to  regulate  may  not  be  delegated,  11. 

reasonable  regulation  of  130 

unreasonable  regulation  of,  131. 

extent  of  control  over,  228. 

snow  on,  235. 

Signature  to  ordinance,  of  clerk,  48. 

of  mayor,  49. 

when  proved  extrinsically.  186. 


310  INDEX. 

Signature  to  complaint,  177. 

Slaughter-houses,  regulation  of  under  health  powers,  213. 
wliat  reasonable  regulation  of,  130,  219. 
what  is  not,  131. 

Smoke,  may  be  regulated,  85. 

Snow,  on  the  sidewalks,  1 30,  235. 

South  Carolina,  law  of  double  offenses,  116. 

State  law,  must  be  conformed  to,  88,  121,  122. 

Statute  of  limitations,  196. 

Strays,  remedy  against,  161. 
notice  to  owner,  162,  249. 
reasonable  regulation  of,  130. 
unreasonable  regulation  of,  131. 
of  non-residents,  137. 

See  Remedies. 
may  be  regulated,  249. 
pounds,  249. 

proof  of  owner's  knowledge,  195. 
regulation  under  police  powers,  213. 

Streets,  power  to  improve  may  not  be  delegated,  11. 
nor  to  determine  boundaries  1 1. 
lights  for,  who  may  erect,  136. 
regulations  under  police  power,  213. 
may  not  be  obstructed  by  markets,  217. 
power  to  regulate  implied,  15. 
use  of  by  non-residents,  143. 
jurisdiction  over,  146. 
under  police  control,  224. 
no  power  to  vacate,  224. 
extent  and  scope  of  power,  224. 
care  of  the  streets,  225. 
lighting,  225. 
grading,  226. 
paving,  227. 
sidewalks,  228. 
protection  of,  229. 

See  Vehicles. 
obstructions  to,  230-237. 

inclosures,  232. 

public  buildings,  233. 

other  buildings,  234. 

snow,  235. 

moving  buildings,  236. 

other  obstructions,  231.  ^ 

railroads,  238-241. 


INDEX.  311 

Streets — Continued. 

openings  in,  234. 

sewerage,  242. 

water-pipes,  243. 

gas,  244,  225. 

telegraphs,  244a. 

restrictions  on  the  ordinary  use,  245. 

sale  of  goods  on,  245. 

processions,  245. 

use  by  vehicles,  246. 
See  Vehicles. 
Street  railways,  240,  241. 
Subject,  covered  by  a  single  ordinance,  74. 
Sunday  ordinances,  when  against  religious  freedom,  122. 

when  discriminating,  136. 

to  insure  peace  and  comfort,  213. 

closing  saloons,  277. 

regulating  trades,  288. 
Suppress  and  restrain,  scope  of  power  to,  31. 
Suspension,  of  council  rules,  45. 
Swine,  when  nuisances,  254. 

regulation  under  health  powers,  213. 
Taxes,  not  levied  under  police  power,  213. 

limit  of  for  police  purposes,  281. 

local  assessments,  282. 

other  taxes,  283. 

mode  of  exercising  the  power,  284. 

amount  of  the  the  tax,  285. 

limited  by  the  constitution,  286. 

discrimination  in,  287. 

Telegraph  poles,  244a. 

Tennessee,  law  of  double  oflFenses  in,  117. 

Territory,  over  which  ordinance  takes  effect.     See  Remedies. 

Texas,  law  of  double  offenses  in,  1 1 8. 

Theater,  amount  of  license  fee,  260. 

definition  of  the  word,  273. 

unreasonable  regulation  of,  131. 
Title  to  property,  not  affected  by  ordinance,  166. 
Title,  of  ordinance  form  and  contents,  71. 

Title  of  complaint,  object  of,  172a. 

form  of,  172a. 

total  lack  of,  172a. 

slight  inaccuracy  not  fatal.  168,  172a. 

ordinary  name  of  corporation,  168. 

exception  to,  taken  in  the  court  below,  172a. 


312 


INDEX. 


Time  of  going  into  effect,  76. 

Toll-bridges,  not  to  be  erected  under  police  power,  213. 
Transcript.     See  Record. 
Transient  dealers,  license  of,  271. 
Trees,  regulation  of  on  streets,  229. 

owner's  remedy  in  case  of  injury,  7. 
Trial  by  jury,  inviolable,  84. 
Uniformity  in  licenses,  280. 

United  States  mail,  transport  of  subject  to  regulation,  86,  199. 
United  States  law,  to  be  observed,  84. 

license  laws,  87. 

law  of  double  offenses,  120. 
Utah,  law  of  double  offenses  in,  199. 
Vagrants,  what  regulation  of  reasonable,  130. 
Validity.     See  Rules  of  Validity. 

Vehicles,  what  regulation  reasonable,  130. 

what  is  not,  131. 

what  is  in  restraint  of  trade,  133,  134. 

of  non-residents,  143. 

on  railroad  grounds,  145. 

use  of  street  by,  229,  246. 

what  regulation  lawful,  246. 

routes  and  stands,  247. 

kept  for  hire,  247. 

construction  of  special  regulations,  248. 
Waiver  of  right  to  object  to  offense,  201. 
Warrant  of  arrest,  form  of,  179. 

what  it  must  contain,  179. 

of  imprisonment,  203. 

See  Complaint  ;  Commitment. 
Water,  provision  for  supply  of,  218. 

for  use  of  fires,  222. 

use  of  streets  to  convey,  243. 
Weighing  of  prodnce,  218. 

Wells,  regulations  of  when  obnoxious,  220. 

Wharves,  what  power  over  delegated  to  harbor-master,  12. 

regulation  of  not  a  regulation  of  commerce,  85. 

discrimination  against  non-residents,  137. 

may  not  regulate  private  wharves,  144. 

what  regulation  valid,  292. 
Wisconsin,  nature  of  the  action  in,  170. 
Women,  unlawful  discrimination  against,  84. 
Wyoming,  nature  of  the  action  in,  170. 

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of  Ohio  during  the  years  1831-1834.  New  edition,  with  Notes.  By  Hon.  J. 
C.  Wright,  late  Judge  Supreme  Court  of  Ohio.     Svo.     Net.  5  00 

YAPLE.  Code  Practice  and  Precedents.  Embracing  all  Actions  and  Special 
Proceedings  under  the  Civil  Code  of  Ohio,  and  applicable  to  the  Practice  in 
all  the  Code  States  having  a  Similar  Code  System.  By  Hon.  Alfred  Yaple, 
late  Judge  Superior  Court  of  Cincinnati.    2  vols.    Svo,    1887.    Net        12  00 


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